Addressing the Limitations of the Law in Engineering Social Change: The Case of Research Animals

By: Shawn Francine Alexandra Reo- WINNER OF ARTICLE WRITING COMPETITON

The Formal Character of Law

The legal theory asserts that law defines, manages and reflects social norms. This process has been emulated throughout the years, with the earliest form dating as far back as around the eighteenth century. Simple attempts at defining property had adapted and evolved into the codification of its process, paving the way for public law. This great development resulted in a significant decline of social norms to formal law, notably concerning equality and freedom, along with a move beyond prohibitory laws – much to the disappointment of antivivisectionists – to control social change, as seen in the area of civil liberties and rights.

This progressive evolution in legal thinking later cultivated one of the most prominent features of the legal system: Administrative agencies, bodies armed with rule-making, inquisitorial and prosecutorial functions. This development was met with mixed reviews from the public. Many criticise these agencies for having too much power and too little accountability. However, in a period where society was found devoid of radical decentralisation, the growth of public administration is rendered obligatory. Contrary to popular belief, administrative agencies can display flexibility and dynamicity in their application of the vast declarations of purpose and scope of the law. As the latter balances conflicting inputs within diverging factions, it also works in developing current legislation, which can be further refined through public engagement and feedback. It is truly a device best suited to a multilateralist society. Additionally, findings suggest a direct correlation between agency success and political considerations, with agencies only achieving success when their decisions are compatible with the policy preferences of the judges. As such, they appear to fulfil public expectations in constraining discretionary abuse by imposing the rule of law.

The Challenges of the Law

Despite public approval, administrative solutions remain largely unsatisfactory to totalitarians who hold little regard to public interest and wellbeing. Out of this dissatisfaction has come a display of flippancy towards the law – an anomy that borders on nihilism. This ultimately results in the proliferation of ‘sunset laws’ by which any legal provision automatically ceases to have effect after a set period of time, lest the law maintain adequate political support for re-enactment. It also results in an atypical shift away from societal reliance toward courts as primary means of conflict resolution. Novel modern instruments have been established to pivot around certain issues, such as consumer claims, to private agencies; or move different accounts of disputes away from litigation and into mediation, as in cases of separation and divorce.

It is in between these historical narratives that arguments are raised on the limits of the law in achieving social change with regard to the protection of research animals. For one, lack of public interest on the issue negatively affects the responsiveness of agencies toward the matter, resulting in less time, management, and overall funds dedicated toward the protection of research animals. The question then arises concerning the exact nature of the relationship between public opinion and agencies – particularly on how the former was able to impact the latter despite bureaucratic barriers between policymakers and its people. Simply put, public opinion is often a direct cause of policy – not the other way around. Hence, changes in the salience of issues of public opinions give rise to changes in policy activity – and as a result, peak periods of policy activity occurs during peak periods of public concern with an issue. With other central issues such as the Black Rights Matter movement and Coronavirus at a constant forefront, concern over research animals has thus been reduced down to a simmer.

The Legal Standpoint

The law should move away from a public-reliant administration regardless if society takes a progressive or cabalistic stance. To do so, the legal framework needs to adapt new control mechanisms, such as goal-setting mechanisms, facultative funding, mobilising the private sector, and universal standard-setting. Indirect legal initiatives are, in fact, as adaptable as conventional administration. Already funding from several research agencies, such as the Medical Research Council (MRC) and National Institutes of Health (NIH), has proven effective in standard-setting regulatory regimes of research animals in bio projects. To allow for progression, society must realise that its main concern as merely one out of a multitude of issues, such as abortion, health policy, food safety, cybersecurity, and more. Proper awareness of ethical considerations in the use of animals in biomedical research will bring about greater self-effacement and better accessibility to the legal system.

The Law in regard to Animal Research

However, it should be noted that the law in relation to animal research has always been subject to controversy. One of the more niche topics of debate concerns the moral dangers of stigmatising antivivisectionists and pro-test activists. Antivivisectionists opposes work with research animals, deeming it immoral, barbaric and unnecessary regardless of the purpose or benefit it serves to society. They tend to clash with pro-test activists, composed of the vast majority of biologists, who uses animals in some forms of biomedical research in order to advance the discovery, diagnoses and treatment of diseases. Arguments regarding the matter are already polarised, as mainstream media portrays only two extremes of the spectrum. Animal rights-extremists (and antivivisectionists) are primarily concerned with animal rights, whereas pro-test activists are interested in speedy developments of biomedicine and toxicology that comes with researching animals. This classified divide is dangerous particularly in the eyes of the law. It allows the latter to undermine the vernacular social analysis process and grossly oversimplify the relationship between ethical concerns of research animals and other at-risk issues for the scientific community. It also results in the public being presented a very narrow view of the entire situation and, as such, a limited choice with regard to the issue – they can either appeal to emotive descriptions of research animals or opt for biomedical breakthrough and discovery.

A great deal of information from both ends should be disseminated to give the public better insight into the complexities and nuances of the matter. Both viewpoints are not as polar opposites as they are made out to be. Despite their pure intentions to ban animal research, antivivisectionists would resort to civil discourse, harassment and property destruction to pursue their goals and yet managed to stay masked under the noble banner of animal welfare. The research community does not hold a cartesian view on the matter. Instead, they support measures to improve animal welfare whilst at the same time understanding the significance of balancing it with the needs of those suffering from diseases worldwide. Furthermore, when conducting experiments, scientists must have the appropriate attitudes and measures toward animal welfare.

Parallels with Environmental Law

All factors considered, it comes as no surprise that the development of law in relation to animal research has been stagnant over the last few years. This article suggests filling the gap by learning from ecological movement and the evolution of environmental law. Despite environmental law having a more extended history and a more established footing in the law, animal law faces many of the same legal and strategic challenges the former does. As such, animal law stands to gain valuable insights from the environmental law movement’s experience in facing those challenges.

Over the years, environmental law has cultivated and later established approaches better suited to upholding accountability for and protecting research animals. For one, impact statements are issued prior to regulating given activities, such as road construction, in order to calculate possible harmful effects of said acts on a place, activity, or group of individuals. Another technique includes placing public funds in trust to better allocate project grants. Both are rational approaches, ready to be executed and equally receptive to social demand, ethical concerns and economic constraints. A real-life example of such techniques in environmental law includes the issuance of ‘pollution permits’, whereby the imposition of taxes and other devices allowed the increase in monetary costs of incursions on the environment. This will lead to modulation and, eventually, elimination of such incursions – nevertheless, it would be wise to divert arduous approaches that might be cataclysmic for sole proprietorships and society.

Previous administrations have managed to showcase the suitability of these approaches in response to the over-changing progressive laws concerning research animals. In fact, the NIH has moved toward approving research into complemental laboratory methods when administering animal experimentation and conducting biomedical trials. One would think that the LD50 toxicity text would be a great starting point. Additionally, proposals for express grants to develop alternatives and initiating international research clearinghouses have been suggested.

Scientific Attitudes toward the Law

Tension between the two sides ultimately culminate in excess of criticism from individuals primarily concerned about animal welfare overindulges toward the scientific community when collecting community support to encourage the progression of positive and proportional law-making. A past example includes the picketing of the University of Wisconsin-Madison (UW-Madison), whereby nine of its’ staff members were unable to respond to charges of animal cruelty and were then equated to modern leviathans. This case exhibits the failure of the university in managing public affairs, overcoming myopic egotism, and overall appreciation of public involvement in scientific research. But then again, surely there ought to be a degree to which some animal use, for example, in college-level courses, is at the very least justifiable. Moreover, the contentious dispute that has been autochthonous in the public movement tends to support groups vying for the public’s attention and funds to stray into obscene pieces and atypical images. Sadly, the misinformation of goals and bio-medical practices are the costs to pay for freedom in a democratic society. It is clear that, similar to its legal counterpart, science has not necessarily done a job well done when it comes to public affairs.

Nevertheless, science should not be stubborn in approaching the matter. By accepting that prohibitory laws are socially unacceptable and ineffective, the scientific community should take lead efforts to protect research animals, improve their conditions, and strive toward eradicating their usage. For example, when looking at the environmental law analogy, should vehicles, oil companies, mining industries, as well as the agro-industry took charge in efforts to protect nature, the pricey, cure-all, layers of inept laws and legislations which every so often closes in on businesses, would otherwise not have been developed. Ultimately, it has now been proven that laws and regulations complement indiscretion.

The law is inherently inimical to speculative despotism – yet, it is bound to cave in lest wise, constant, and compelling leadership is upheld born from the scientific community. The law will ultimately do as they are told and can revert to antiquated methods of prohibition and authoritative propagation. Imagine if the heaps of documents to be filled out if the conservation of animals, including those in laboratories, were legally authorised. We will surely have only ourselves to blame.

References

1. Joseph W. Singer, Property and Social Relations: From Title to Entitlement, in Entitlement: The Paradoxes of Property 56-94 (2000).

2. Alex Ingrams et. al, Learning from Our Mistakes: Public Management Reform and the Hope of Open Government, 3 PPMG 257, 264 (2020).

3. Julius H. Seelye et. al, Prohibitory Law and Personal Liberty, 147 NAR 121, 122 (1888).

4. Karl-Heinz Ladeur, The Evolution of General Administrative Law and the Emergence of Postmodern Administrative Law, 7 (Osgoode CLPE Research Paper no. 16/2011).

5. Urska Velikonja, Are SEC’s Administrative Law Judges Biased? An Empirical Investigation, 92 Geo. Wash. L. Rev. 315, 320 (2017).

6. Jeovan A. Silva & Tomas A. Guimarães, Regulatory Agencies and Courts: Interactions Between Administration and Justice, 18 Cad. EBAPE.BR 513, 519 (2020).

7. Antonios E. Kouroutakis, The Constitutional Value of Sunset Clauses: An Historical and Normative Analysis 3 (2017).

8. Randy J. Kozel, Stare Decisis as Judicial Doctrine, 67 Wash. & Lee L. Rev. 411, 460 (2010).

9. Benjamin I. Page & Robert Y. Shapiro, Effects of Public Opinion on Policy, 77 Am. Political Sci. Rev. 175, 176-180 (1983).

10. B.G. Peters & Brian W. Hogwood, In Search of the Issue-Attention Cycle, 47 J. Politics 238, 239-250 (1985).