‘Ruff’ Justice: Canine Cases and Judicial Law Making as an Instrument of Change

Abstract

The regulation of animals in North America should be apprised of evolving socialities. As the judiciary encounters situations of contestation between humans and animals in adjudication, it should take notice of the emergence of animal recognition in Western societies. Law is apprised of sociality, can absorb social information, and may, at times, reflect how citizens view issues of justice. What was once innocent behavior can be reconstituted as criminal through the adjudicative exercise (and vice versa). In this Paper, we investigate socio-legal constructions of ‘the animal’ in two recent North American adjudications. In two recent cases, R. v. D.L.W. and State v. Newcomb, the Supreme Court of Canada and the Oregon Supreme Court contested what it means to be an animal in situations of bestiality and animal welfare investigations respectively. We argue that the jurisprudence in Canada and the United States should begin to incrementally shift towards progressive conceptions of animal existence. Such an understanding would (re)consider animals as beings, capable of worth and dignity – as more than expendable property. In light of a relative void of modern animal welfare legislation in North American jurisdictions, let alone animal bills of rights, the judicial decision remains the most likely site of progress for animal advocacy.