The objectives of this thesis, which are more fully described in chapter 1, are three-fold. First, to identify the philosophical and religious underpinnings of Australian law originating during the nineteenth century by which animals are treated as something more than merely personal property, both within the criminal law and the laws of wills and trusts. Second, to consider the present form of that law with a view to identifying its underlying rationale or basis. Finally, to place that underlying rationale in its context within the framework of the current philosophical debate as to "animal rights".
Chapter 1 is merely an introduction to the objectives and scope of the thesis, but seeks also to introduce the difficulties of interpretation of law conducive to animal welfare. In chapter 2, the philosophical and religious underpinnings of the animal cruelty legislation are traced in their social context from their Greek origins to the period of the Renaissance. Chapter 3 considers the historical peculiarity of the "animal trials", a phenomenon apparent both in Greek culture and in Western jurisprudence, in the latter their occurrence essentially dating from the Renaissance. Chapter 4 moves from the Renaissance through to the close of the eighteenth century in identifying the growth in English society of the attitudes that would give rise to the legislative protection of animals from cruelty at the beginning of the nineteenth century.
Chapter 5 focuses on the adoption in England of that legislation during the nineteenth century and considers the content of that reform and its philosophical and religious underpinnings. Chapter 6 considers the influence of the English precedent in Australia and traces the historical development of Australian animal welfare law, together with its philosophical and religious underpinnings, to the present day.
In chapter 7, the judicial construction of the legislation is presented with a view to identifying the perception by the courts of its nature and function. Chapter 8 undertakes a similar analysis in the context of the law as to "animals within wills and trusts". In setting forth the law as to charitable and non-charitable animal purpose trusts, the thesis identifies the dilemma in their recognition for the coherence of our legal system and the implications of that for human interests in the future. An assessment of both gifts by will to animals and testamentary pet destruction provisions follows, the latter in further emphasis of the role of sentiment in the formulation of animal welfare law.
Chapter 9 is an assessment of our existing animal "entity" law in terms of its appeal or otherwise to the concept of legal rights as being possessed by animals. It is chapter 10 which considers the relationship of the rationale underlying that law to the possession or otherwise of moral rights by animals. It identifies the implications of that relationship for the reform of animal welfare law.
It is concluded that in the reform of Australian animal welfare law, reform may be sought in terms of either reason or sentiment (perhaps both) in justification of the need for change.
If in terms of reason reform is sought, there are increasingly strong grounds upon which the focus of debate must inevitably move towards the recognition of the intrinsic value of an animal. To the extent that such recognition appears to be being evidenced in the present round of legislative reforms, it may be best rationalized in terms of the recognition of the animal’s telos: its own biologically determined natural and behavioural requirements.
If to sentiment the debate should shift its focus, the arguments in justification of reform appear to be purely instrumental in nature. Nevertheless, whether the nature of any consequential reform would be practically different from that inspired by appeal to reason is questionable. The recent resurgence in philosophical interest in the morality of animal sympathy has little explored the question as yet. What is clear is that in the historical growth and present form of our animal "entity" laws, sentiment has been given significant expression. If the reform of Australian animal welfare law should occur exclusively in the context of contemporary rationalistic philosophy, this would be to ignore a most significant aspect of our existing law and its inspiration.