Bending the Rules?

Including Animals in a Substantive Account of the Rule of Law

Abstract

This article explores the relationship between the rule of law and the situation of nonhuman animals. A commonplace view prevails that the rule of law in anthropocentric legal systems is unrelated to how we treat animals. In those rare instances when jurists have framed the legal treatment of animals as a rule of law problem, the connection has been a limited one (i.e., the rule of law is said to be violated when governments fail to enforce existing laws for animals’ benefit). This article presses the connection between the rule of law and animal justice beyond the issue of poor enforcement of anticruelty laws to build upon nascent scholarship theorizing legal systemic animal use as presenting a constitutional problem implicating the rule of law. The article asks whether Canadian jurisprudence contains precedent for a “thicker” vision of the rule of law that can incorporate animal interests in its purview to generate a higher standard of animal protection than the very little that currently exists. The article concludes that it does. Although the “thinner” version is the one that has been more frequently articulated by the Supreme Court of Canada, the analysis charts the significant precedent for a substantive vision, arguing that such a vision could theoretically extend to animals and that this doctrinal opening should not be summarily closed by ongoing anthropocentric reasons. The article further highlights existing legal commitments outside of conventional rule of law doctrine, namely reconciliation with Indigenous legal orders and adherence to customary international environmental law and developments in transnational environmental litigation, as additional doctrinal grounds as to why Canadian legal conversations and reasoning about what the rule of law means and protects should consider an animal-inclusive vision.