Koos van Zomeren (author) interviewed Dirk Boon, professor of Animal Rights at the University of Utrecht (he is a former candidate for the Party for the Animals) about his frustration that article 36, first subsection of the Health and Welfare act for Animals, is never enforced.
"If I said that cows have a right to being put out to graze in grassland, what would your reaction be?"
"No doubt about it", said Dirk Boon.
"And if I said that cows have a legal right to shade?"
"Certainly", said Dirk Boon, "that's a good one".
"Hm", said Koos van Zomeren.
He, the legal man, gives the impression of using the concept of "rights" more loosely than I, the writer. After all, In both questions the rights of cows to this or that were quite simply put. Rights , metaphorically speaking. A somewhat faded figure of speech that I would hesitate to use myself And as soon as you want to elevate the term 'rights' to a legal status, you find yourself confronted with enormous problems. To start with, you would need to have proof that the welfare of cows would be enhanced by roaming grasslands and having access to shade. Furthermore, the question still remains as to how the rights of cows to welfare (coupled with the rights of the Dutch people to a pleasantly decorated landscape) relate to the rights of the farmers to profitable businesses.
At this stage, one thing is clear: legislation has afforded animals rights in the formal sense of the word.
We are seated in the chique surroundings of an establishment in Zwolle, my conversation partner is a little taller than I remembered him. But the resonant tones and the broad line of reasoning leave me in little doubt as to who is facing me: this is Boon. He has a Legal practice in Groningen and a University Chair in Utrecht. The first and only professor of Animal Rights in the world, as he reminded me at a certain point.
When asked about his favourite legal article, he cited immediately and with great enthusiasm the first subsection of article 36 of the Health and Welfare Act for Animals of 1992. "It is forbidden without reasonable purpose, or by overstepping that which is acceptable for attaining that purpose, to cause pain or injury to an animal or to endanger the health or welfare of an animal". Sipping his tea, he concludes: "A marvelous thing! Especially the parenthesis - 'or by overstepping that which is acceptable for attaining that purpose'- stands out in its beauty".
It will always be a balancing of interests , those of the animals as against the those of the other. It is not of interest to the cat, for example, whether it is cut open by a sadistic 16 year old schoolboy or by a 36 year old scientist searching for a cure for aids, but it is of interest to the judge.
Or suppose you can make plausible that taking a calf away from its mother is a basic infringement of the welfare of the cow, here again even the (economic) interests of the dairy farmer could prevail. But the slightest encroachment of the welfare of minks could lead to breeding prohibition, if it could be proven that women's interests are no way served by wearing animal fur.
This is how you could put this wonderful article to the test, yet is never tested this way.
The formulation of the article dates from ancient times. It is based on two stipulations against animal abuse which were incorporated in the Code of Penal Law in 1886. The Minister of Justice, Modderman, was at that time on the trail of animal rights. But at the end of the day, it wasn't the animals who were afforded rights to be safeguarded from pain and injury, but the members of the upper classes who obtained rights to be protected from the coarseness of the lower classes, or plebs.
Boon: "And so, these stipulations came under indecency offences, along with articles about prostitution and dubious acts concerning minors".
As late as 1980, Parliament decided to abandon the indecency element and determined that there was an obligation to treat animals with dignity, to respect their interests and to leave them in their intrinsic value.
Boon: "Intrinsic value, everyone loved it, but that concept can be put in the fridge, as far as I'm concerned. It is the same as insults and slander. It is there, absolutely, but what can you do with it?"
No, then the Health and Welfare for Animals from 1992, artikel 36, first subsection - if it were only enforced! Jurisprudence is minimal.
A cat that is flung in the water in a sack weighed down with stones. Pain, injury? Health or welfare threatened? Nesting swans that are mowed down by a farmer's mowing machine. Thirty live fish that are kept in an angler's plastic bag on the waterside.
Boon: "All these tiresome arguments in order to make someone punishable. And even if it does come to a conviction, the punishment is always light, such as a fine of 500 Euros, or fourteen days in prison".
The law distinguishes between animals which are "kept" and those that are "not kept". In the case of kept animals, a further distinction is made between animals for production, for companionship and laboratory animals. Non-kept animals are, in their turn further divided into wild animals and dangerous animals.
Boon: "A forest of rules and stipulations, and apart from the Law on Animal experiments, nothing works. The chaos grows. You tie your dog to a tree in the woods and in its place you take a snake into your home and start breeding rats on your balcony, because of course, your snake cannot go hungry! Not a soul does anything about it".
And now, he really gets going: "One hundred and sixty million animals are kept in this country, and the welfare of the 90% of them in factory farming is seriously threatened. Amongst the other 10% are the seven otters recently released back into nature with transmitters on their heads. They cannot be allowed to disappear, because then we would have lost our expensive playthings (thirty million was invested in infrastructure). Here we see cruelty on the one hand, the need to cuddle on the other.
"Animal protection has never", he says, "never been able to achieve anything. The cart-dog was only prohibited when transport had long been motorized".
"There are however, " I say "enough pig breeders who claim : I cannot do any more for my pigs". Boon's reaction: "Oh yes, there are minimum requirements regarding floor space, the length of the feeding trough, supply of water and daylight. And this is controlled just once in the seventeen years!"
I: "And then to think that the legal position of the tiny (2mm) creature (the Desmoulins Whorl snail) is so strong that it can even delay Construction of a motorway".
Boon: "Yet you can throw out buckets of slugs with the rubbish. The strange thing is: as long as its seldom, it's taken seriously, you won't find that anywhere else in the law".
No, only for article 36, first subsection, are all animals equal, whether kept or non-kept, seldom or common. A hundred law cases should be able to be fought on the basis of that article, and on the parenthesis. Then we will know in ten years time exactly what mistreatment of humans is.
Boon: "I want to have factory farming abolished".
I: "Maybe you should rely more on the price of land than on the law".
Boon: "I am in favour of upholding the law. In fact, in this area, we find ourselves in an extremely tolerant situation. It is all symbolic legislation.
I: "And you want to put an end to that?"
Boon: "I don't want to be a symbolic professor!