Against Utilitarianism in Animal Testing Law

Abstract

Keywords

Animal rights; animal welfare; laboratory animals; utilitarianism; animal testing.

Suggested Citation Style

Bernet Kempers, Eva (2025). Against utilitarianism in animal testing law. Journal of Animal Law, Ethics and One Health (LEOH), Special issue on Accelerating Replacement of Animal Experimentation: Critical Theoretical Perspectives, 12-29. DOI: 10.58590/leoh.2025.003

* Postdoctoral Researcher, University of Antwerp (Belgium); Junior Research Associate at the Cam- bridge Centre for Animal Rights Law (UK)

Content

• I. Introduction
• II. The algorithm of animal testing law
• 1. Use of the utilitarian algorithm in Belgium, Switzerland, the Netherlands
• 2. Balancing interests: a flawed formula
• III. Moving away from cost and benefit: non-utilitarian perspectives on animal testing
• 1. Posthumanism and human-animal relations
• 2. Ecofeminism and vulnerability
• 3. Capabilities and animal dignity
• IV. Regulating laboratory worlds: how to shape the law addressing ‘morally messy affairs’
• 1. The importance of deontological constraints
• 2. Ensuring respect for animal flourishing
• 3. Regulating human-animal relations
• V. Conclusion

I. Introduction

The famous and often-repeated notion by Robert Nozick that we have ‘Kantianism for humans, utilitarianism for animals’ seems particularly relevant to the use of animals for scientific purposes.^[1] While the legitimacy of research involving human subjects is assessed based on whether it violates their inherent fundamental rights, experimentation involving non-human animals is generally evaluated by whether the utility for humans outweighs the pain and suffering caused to animals. Despite an increase in the number and scope of laws addressing animal experimentation, the commitment of the EU to aim for ‘the final goal of full replacement’ of animal models,^[2] and the integration of the 3R principle in legislative frameworks worldwide, little has changed in practice.^[3] In fact, over the years, the number of animals used for experimentation has increased slowly but steadily. The aim to ‘reduce, refine, and replace’ thus remains wishful thinking more than actual reality.^[4]

Although Jeremy Bentham, one of the founders of utilitarianism, is often referenced for coining the idea that animal interests deserve ‘equal consideration’ in the utilitarian balancing act,^[5] Nozick’s observation was not meant very positively. By pointing to the stark contrast in legal reasoning when dealing with questions concerning other animals, in one sentence he makes clear how the anthropocentric prejudice is reproduced in the use of the utilitarian formula as a legitimation for what, essentially, is a form of oppression of other beings based on their species. When a logical and consistent model is employed that allows us to ‘calculate’ how much utility humans derive from a certain test and ‘detract’ from that the total amount of suffering or strain caused to animals, the continuation of their use for scientific purposes seems very reasonable indeed. As long as the calculation ends up above zero, the pleasure simply outweighs the pain.

This paper suggests that the failure of the 3Rs to decrease animal use in scientific research is due to the fundamentally flawed standard algorithm steering animal testing law. The concept of ‘standard algorithm’ here refers to the set of assumptions, rules, and instructions followed to solve a problem given an initial set of conditions.^[6] It is the framework providing the logic and roadmap for solving a problem, underlying and defining the interpretation of a legal framework. In the context of animal testing, this standard algorithm is based on a utilitarian formula.^[7] Drawing from literature that approaches ‘the question of the animal’ non-utilitarianly,^[8] I propose another way of thinking about animals in laboratory settings, which could inspire how to shape laws addressing the practice in a way that circumvents the standard algorithm, thereby improving the effectiveness of the 3Rs, bringing the aim to ‘full replacement’ within reach.

The paper is structured as follows. First, I will explore how the standard algorithm manifests itself in animal testing law in Belgium, the Netherlands, and Switzerland to illustrate how the utilitarian ethic steers legal approaches to laboratory animals under different guises.^[9] The focus here is not on the details, procedures, and requirements of animal experimentation legislation, but rather on the overall theoretical model underlying animal testing laws. I will then critique this algorithm, demonstrating how it represents a flawed version of utilitarianism. Subsequently, I will examine alternative non-utilitarian approaches to animal testing, discussing the post-human turn in animal studies and Martha Nussbaum’s capabilities approach as potential inspirations for complementing the implementation of the 3Rs. In the final section, I will translate these insights into practical tools to guide the development of animal testing law in the right(s) direction.

II. The algorithm of animal testing law

Utilitarianism, as developed by Bentham and Mill, can be summarized in a few core propositions.^[10] Most importantly, it suggests that only happiness and pleasure are good, and only unhappiness or suffering is bad. The central idea is that the moral value of an act is not to be determined by its conformity to some rule, duty or principle, but the other way around: rules, duties and principles are to be determined by actions undertaken in accordance with them. An act, then, is not to be judged by its nature, but only in terms of its consequences – its impact upon the overall happiness. Robert Bass identifies constant factors that define utilitarianism as follows: a) it is consequentialist: only contributions to good or bad consequences matter; b) it is universalist: all affected beings count equally; c) it assumes aggregation: benefits and harms can be summed up across individuals; d) it is egalitarian: all benefits and harms count equally, and e) it assumes maximization: the good should be maximized.^[11] One of the pitfalls of utilitarianism is however that it can have counter-intuitive consequences when the innocent few should be sacrificed to save a larger number, as demonstrated by the famous Trolley-problem.^[12]

The utilitarian school of thought became closely associated with animal rights and animal activism through the writings of the Australian ethicist Peter Singer. In his famous book ‘Animal Liberation’, he argued that a version of utilitarianism, based on preferences, requires us to take animal interests into equal consideration in the determination of what is the right action, since animals are sentient too, and thus can experience pain and pleasure.^[13] It should be noted, however, that Singer never explicitly argued for ‘animal rights’ in his work: indeed, as a utilitarian, he would deny the existence of ‘rights’ to begin with, as no fundamental claims may be held by individuals that would put a stop to the maximization of happiness. The concept of rights is better associated with deontological writers like Tom Regan, who suggest that individuals have intrinsic value, giving rise to fundamental rights that cannot be sacrificed for the greater good.^[14] These two schools differ fundamentally: utilitarianism focuses on maximizing happiness, while deontology emphasizes respecting the intrinsic value of individuals.

It was the utilitarian way of thinking that became most influential in the shaping of the laws addressing animals during the 20^th century, giving rise to the paradigm of ‘animal welfare’.^[15] This paradigm, which remains guiding until today, is based on the assumption that using animals for human purposes is legitimate, as long as their unnecessary suffering is minimised. In animal legal scholarship, this is known as the ‘welfarist position’, legal welfarism,^[16] or the ‘Animal Welfare Model’.^[17] Clearly, what is and what is not regarded as ‘necessary’ suffering, is left to the discretion of (anthropocentric) judges.^[18] This, of course, is a strong dilution of the original Singerian idea that animal interests count equally. In fact, the legal version of utilitarianism that seems loosely based in Singer’s approach has proven rather detrimental for animals, as the central yet empty norm of minimalization of ‘unnecessary suffering’ arguably has been more effective in legitimizing suffering under the guise of ‘necessity’ than actually preventing it, reducing ‘animal welfare’ to an instrument through which practices harming animals may be approved or even applauded as examples of ‘good animal welfare’.^[19] In contrast, with regard to the human species, the deontological rights-basis has become central due to the growing human rights doctrine and instruments. This causes the crucial imbalance that Nozick so famously referred to in his work: we are balancing animal interests to human rights. It is not surprising that the human side of the equation usually triumphs.

Over the years, however, the legal approach towards animals developed and expanded, building upon the utilitarian basis with more deontological limits in the form of prohibitions and restrictions on the rights of owners.^[20] With regard to, in particular, companion animals, but also, to a lesser degree, production animals, European legal systems have introduced various legal norms that limit the degree of suffering that can be legitimately caused or prohibiting certain uses of animals, for instance to produce mink fur or to test for esthetical reasons, representing a more deontological constraint to human actions. These prohibitions are furthermore complemented by a positive duty to provide care to the individual animal one owns.^[21] Some authors have argued that these kinds of legal protections may even be considered a form of (simple) rights for those animals, thus blending utilitarian and deontological thinking.^[22]

However, the inconsistent treatment of animals according to their use-category,^[23] which is the standard in the welfarist legal regime, leads to paradoxes. For instance, a beagle (a breed of dog particularly favoured for animal testing due to its size, calm nature, and high pain threshold), when categorised as ‘test animal’ can be subjected to all kinds of treatments that, when that very same beagle would have been classified as companion animal, would have made his owner end up in prison for animal abuse. Therefore, there is a growing support for a more radical improvement of animal protection law through granting animals legal rights similar to those of humans and abolishing their exploitation for human use, a position that is known as ‘the abolitionist position’ in its most absolute form,^[24] or ‘the Animal Rights model’.^[25] According to this position, which is often discussed in dichotomy with animal welfare, animals cannot be used for experiments as all, as such use would constitute a violation of their fundamental rights.

That abolitionism is still quite a utopian idea is illustrated already in the beagle-example, as it shows how the strengthening in the legal protections addressing companion animals under the welfarist regime have tended to exclude those animals used for laboratory purposes, even if they belong to the very same species. Indeed, animal testing law has remained particularly utilitarian and determined by anthropocentric motivations, as deontological limits have remained largely absent. The idea that we should balance between benefits for humans and pain for animals, still forms a central guideline for decision-makers in committees that must decide whether or not a certain test involving animals is legitimate. This way of thinking could be captured by the formula X – Y ≥ 0 = A, where X stands for ‘human benefit’, Y stands for ‘animal suffering’ and A for ethical action. When X minus Y is greater than 0, it means that the test involving animals is ethical and can be approved (A). The consequentialist utilitarian basis shines through in the fact that 1) the outcome determines the acceptability of the action and 2) it is assumed that negative impact and positive benefit can be weighed against each other in an abstract way. This algorithm simplifies a complex ethical question by assuming that positive and negative impacts can be weighed against each other abstractly. In the next section, we will see how this standard algorithm is translated in the national legal framework of different jurisdictions.

1. Use of the utilitarian algorithm in Belgium, Switzerland, the Netherlands

In the case of animal testing, a multidisciplinary Ethics Committee usually evaluates proposed experiments before they begin.^[26] This committee reviews the research protocol to assess whether the use of animals is justified, guided by national and international laws grounded in the principle of the 3Rs.^[27] However, as we will see, the utilitarian formula primarily underpins the decision-making process. This utilitarian way of thinking is evident in the legal approach to animal testing across different jurisdictions.^[28] We can look at three examples to understand how this logic manifests itself concretely. Although national legal frameworks are partly based on European legislation, many continental jurisdictions have developed their own specific approaches.

In Belgium, for instance, animal testing law stipulates that in writing a project proposal for an experiment involving animals, the harm to animals needs to be characterized as ‘terminal, light, substantive, or serious’.^[29] The method is explicitly utilitarian as it stated that the application submitted for evaluation by an ethical committee has to perform ‘a damages-benefits analysis of the project, examining whether the harm in the form of suffering, pain, and fear to the animals is justified by the expected outcome, taking into account ethical considerations, and can ultimately yield benefits for humans, animals, or the environment’.^[30] There is no mention, however, of the kind of interests or kind of outcome the project is about: all kinds of interests benefitted by the experiments could, in theory, overrule the suffering, pain and fear of animals. It is hard to imagine when, exactly, one would determine that the costs to animals outweigh indeed the benefits of ‘the expected outcome’.

In Switzerland, since the recognition of the ‘dignity’ of animals, animal testing has to first pass the test as to whether or not it is a violation of animal dignity.^[31] Although the notion of ‘dignity’ originally has Kantian connotations, its operationalization in the Swiss context turns out to be almost equally utilitarian as the Belgian approach. The explanatory guidelines state that ‘the overall strain and the interests must be weighed against each other’ to determine whether a certain use is legitimate.^[32] This means that, as Bolliger points out, ‘if a justification by prevailing legitimate interests is possible, the dignity of a concerned animal can be considered ‘respected’ despite the stress imposed on the animal’.^[33] The absence of any upper limit is a clear sign of the utilitarian way of thinking underlying the Swiss notion of dignity. The main difference from the Belgian approach is the requirement that the interests involved need to be ‘legitimate’; they cannot be just any interests. Interests relating to luxury needs, pleasure, hobbies, sports, and leisure activities, as well as pure economic interests, cannot be regarded as legally justifiable.^[34]

Figure 1 Swiss tool for ethical evaluation^[35]

In the Netherlands, animal testing law also introduces the balancing requirement, stating that an analysis needs to take place ‘of the harms and benefits resulting from the project, assessing whether the harm in the form of pain, suffering, distress or lasting harm to the animals is justified by the expected outcome taking into account ethical considerations, and can provide benefits to humans, animals or the environment over time’.^[36] This requirement is operationalized through a central framework based on Mepham’s matrix. This matrix requires decision-makers to list the interests of different groups in various columns (welfare, autonomy, or justice) and use this matrix to make a balanced and nuanced assessment of whether an experiment is worth the negative impact it has on the animals.

Figure 2. Mepham’s matrix (adjusted) as ethical framework for animal testing in the Netherlands^[37]

The Dutch approach appears somewhat less utilitarian than the ethical frameworks of Belgium and Switzerland, as it includes not only interests but also ‘moral values’ and the concept of ‘justice’. In the context of animals, justice refers to their intrinsic value (codified in the animal protection act, Wet Dieren 1.3) and integrity, which has been a significant consideration in ethical debates on animal research in the Netherlands.^[38] On the one hand, the advantage of using such a more elaborate matrix, is the fact that the exercise takes account of more nuances, for instance also the availability of the product for which animal testing is necessary (under ‘justice’). At the same time, the diversity of concepts that have to be taken into account seems to further complicate a balancing exercise that is already quite difficult to make. Despite seeming less utilitarian, the bottom line remains the same: determining whether the negative impact on animals is justified by the potential benefits to others.

These examples illustrate how the utilitarian framework, which balances the benefits of human interests against animal suffering, dominates the legal approach to animal testing, even when other ethical considerations, like dignity, are introduced. Due to the standard algorithm, the use of animals in experiments remains justified as long as the perceived human benefits outweigh the animal costs, making it difficult to see how the 3Rs can be effectively implemented.

2. Balancing interests: a flawed formula

The notion that interests must be balanced to determine the legitimacy of animal testing seems intuitively appealing. However, it becomes problematic when we delve into the specifics of this balancing exercise. The formula avoids addressing the fundamental question: is it justified to bring creatures to life solely to subject them to harmful tests? Utilitarianism conveniently sidesteps such questions, as it does not require adherence to any a priori principles or rules. The balancing act assumes that animals are inferior and instrumental to human gain, leaving the ethics of bringing them into life in the first place, outside the scope of consideration.^[39]

A further problem arises from the assumption that we can quantify utility and suffering to subtract one from the other. This presupposes that we can calculate pains and benefits by aggregating them across individuals. However, how can such subjective experiences be quantified? As Beauchamp and Morton point out, ‘the cumulative suffering is difficult to compute, because the extent and nature of a prior harm may affect an animal’s perception of a subsequent harm’.^[40] At the same time, also the benefits for society are very hard to determine, as often only a small number of tests are applied and used in practice.^[41] As Crowley finds in a cross-study of medical experiments ‘of the 25,000 articles searched, about 500 (2%) contained some potential claim to future applicability in humans, about 100 (0.4%) resulted in a clinical trial (...) only 1 (0.004%) led to the development of a clinically useful class of drugs.’^[42] For the rest, the human benefit has remained mere speculation. In other words, the ‘human benefit’ is impossible to predict and often entirely absent. In a shocking 99,996% of the cases, animal testing does not seem to translate in any concrete benefit for humans at all. With what are we balancing exactly?

Another issue is the negation of animal individuality. Through all three models, the reality of numerous animal lives is lost in the abstract pain-pleasure calculation. The number of animals disappears into the abstract realm of ‘interests’. For the human side of the equation, this abstraction makes sense (as there are no actual human individuals involved in the test), but for the animal side, no such generality is possible. What is measured here is an abstract notion of the severity of harm, not the reality of the many animal lives implicated.

Additionally, the standard formula is applied by those who stand to benefit from the test (the humans), leading to a very unequal starting position. Humans can only win, while animals can only lose. In fact, not engaging in animal testing would have minimal negative impact on present human lives (only a presumed lack of positive influence). Elisa Galgut summarizes this adequately in her study on the justification of animal research in South Africa.^[43] According to her, the basic premises of utilitarianism are not being met in the context of animal testing. She argues that 1) animal interests are routinely undervalued (since most decision-makers engage in practices based on animal oppression, such as meat-eating), 2) human interests are routinely overvalued (as animals are still used for basic research without direct application to humans), 3) animal research often lacks predictive value, and 4) the paradox of similarity undermines legitimacy (as animals are deemed sufficiently similar to humans for testing yet insufficiently similar morally). Therefore, the idea that we can balance human benefit with animal pain is flawed. A calculation with aggregate animal suffering on one side and an abstract, unpredictable (often absent) benefit for humans on the other is impossible in both theory and practice.

This observation suggests that as long as the 3Rs are implemented within a context fundamentally based on the utilitarian formula, their efficiency will be questionable. While the algorithm may prevent a small number of animal experiments from proceeding (when the calculation ends up below zero), it legitimizes most experiments by approving them and thus deeming them ‘ethical’. It is important to distinguish the utilitarian formula from the proportionality principle used in other fields of law, where different human rights are balanced against each other. The utilitarian formula is consequentialist (the outcome defines the acceptability of an action), while the proportionality principle is not, as it still regards an infringement of a right as an infringement that can be justified only under exceptional circumstances. In contrast, once an animal experiment is deemed ethical, it is unlikely that the 3Rs will still be applied rigorously. Why reduce, refine, and replace when the experiment is approved by an established ethical committee?

III. Moving away from cost and benefit: non-utilitarian perspectives on animal testing

The standard algorithm of animal testing law – the utilitarian formula of weighing animal harms against human benefits – has several inherent problems. Despite these issues, it remains deeply ingrained in legal decision-making due to the dominance of utilitarian thinking in animal protection law since the late 20th century. This framework is based on the notion that animals can be used by humans as long as their suffering is minimized.^[44] In this section, I will look at some alternative ways of thinking that approach ‘the question of the animal’ in a non-utilitarian manner. These writings can be considered as influenced by the so-called ‘animal turn’ in social sciences humanities, which meant a decentring of the human and a focus on animals as individuals.^[45] Rather than emphasizing the capacities of different species, or the ‘similarities’ of animals with humans, the emphasis here is on the concrete realities in which individuals interact, whether human or animal. By doing so, I will develop a way of thinking about animal testing that surpasses the earlier mentioned dichotomy between the welfarist position (animals can be used for research as long as their suffering is minimized) and the abolitionist position (animals can never be used for research) as a potential inspiration to reshape the algorithm of animal testing law in a non-utilitarian manner.

1. Posthumanism and human-animal relations

Posthumanism challenges traditional human-centered views by deconstructing the boundaries between humans and other animals. It emphasizes the interconnectedness of all species and the idea that humans are not exceptional but part of a larger ecological system, and aims to decentre the human being by providing a set of concepts that can help to rethink human-animal relations in such a way that more-than-human agencies are included.^[46] In posthumanist literature, the focus thus lies on the way in which different species are entangled with each other and practice and contribute to becoming with each other intra-actively. Especially relevant in relation to animal testing are the works of Donna Haraway.^[47] She has illustrated the important role of animal technicians working with animals in creating a culture of care and adhering to existing regulations. Rather than as passive objects to be tested upon, Haraway describes animals as ‘workers in labs’.^[48] She states in this context that we should see animals and humans ‘as “response-able” – a capacity which is by definition relational, always implicating multiple beings becoming together intra-actively (…) animals as workers in labs, are response-able in the same sense as people are; that is, responsibility is a relationship crafted in intra-action through which entities, subjects, and objects, come into being.’^[49] She argues against the binary nature/culture and instead, become-with animals and develop ties with the more-than-human world through ‘empathy, accountability and recognition.’^[50] According to her, scientific research also benefits non-human animals, and thus is not solely for human gain: animals themselves are stakeholders in the experiment.^[51]

Haraway’s view has led to critical responses, as, according to scholars writing from a critical animal studies perspective, she fails to assess the overarching power relations in which this form of ‘care’ manifests itself.^[52] She is, for instance, criticised for her position that animal experimentation and other forms of animal use should be responsible rather than abolished, as she allegedly uses a form of ‘discursive wizardry’ to mask the dominant position of human beings in this regard.^[53] Indeed, by focusing on the relations between animals and animal technicians, Haraway describes beings as having ‘agency’ in a situation in which their entire lives are determined by human actors. Animals are described as ‘workers’, yet there is no mention of the forced nature of their work, lack of consent, and limits to their employability.^[54] As Vinciane Despret points out, ‘in the referential framework that emerges from [the] division of labor/exclusion from labor, it is held that what animals do, they do “naturally”, as if answering our needs is the same thing as acting according to nature’.^[55]

While seeing animals as workers is conceivable in the context of, for instance, guidance dogs, the case of animal experimentation seems particularly unfit.^[56] There are, however, still certain valuable lessons in Haraway’s texts, such as the radical foregrounding of animal individuals, and the attention for the interactions and relations between different beings within laboratory settings. Rather than abstract sums of pains and pleasures, Haraway’s approach demands foregrounding the animals’ lives, their needs and responsibilities, thereby rejecting the utilitarian formula. As she emphasises, ‘[t]o be in response to that is to recognise co-presence in relations of use, and therefore to remember that no balance sheet of benefit and cost will suffice’.^[57]

Another important posthumanist author writing about laboratory animals specifically, is Vinciane Despret, who in her short work ‘Thinking like a Rat’, challenges the normal way of structuring animal experiments.^[58] Building on the idea that animals experience reality in terms of their own ‘Umwelt’,^[59] she questions: what does the maze mean for the rat? In doing so, she points out that behaviorist research using rats and mazes usually fails to inquire how the rats perceive mazes and what the rats find interesting and amusing. By thinking with rats, becoming-with animals, the experience and lives of animals in labs could thus be greatly enhanced. Such awareness thus would not only improve the experiences of the rats, but also the outcome of the experiments.

Building on such perspectives is Anne Van Veen, who studies the reality of human-animal becoming in laboratory animals in the Netherlands as a ‘multispecies choreography’, approaching all individuals involved as actors that create the reality of the lab.^[60] In her work, she starts from the experience of a single mouse and describes how ‘AT’s really care about the animals and take good care of them. Attention to welfare and acts of care, even if not (just) instrumental in conducting the experiments, in that way also helped to facilitate experimental practices’.^[61] Hence, through this lens she shows a different side of animal experimentation; the reality of human-animal interaction, and foremostly the goodwill of animal technicians in this respect.

In their study of ethnographies in labs, Lesley Sharp takes a similarly post-human perspective in her analysis of the ‘principles’ that guide the logic of ‘lab animal worlds’. According to her, ‘lab-related, inter- and intraspecies encounters are morally messy affairs’,^[62] but often show a level of care in animal technicians, who go far beyond what is legally demanded from them, seeking ways to improve lab animal lives. The image here is similar to the one painted by Van Veen; animal technicians do show care in the face of the vulnerability of their research subjects; a fact that is left entirely out of sight when we locate the ethics of laboratory testing in the abstract balancing exercise, rather than the reality of the experiment.

2. Ecofeminism and vulnerability

Ecofeminism links the exploitation of animals with the exploitation of women and other marginalized groups, arguing that these forms of oppression are interconnected.^[63] This perspective emphasizes the importance of empathy, care, and relationality in our interactions with animals. By recognizing the shared vulnerabilities of humans and animals, ecofeminism calls for a more compassionate and ethical approach to protect animals. This approach challenges the utilitarian notion of balancing harms and benefits by highlighting the inherent value of all living beings and the moral imperative to protect them from harm. Ecofeminism is an explicitly activist school of thought, which places the lives of the oppressed (whether by gender, race, species, or other hierarchical systems) at the centre of the research agenda.^[64] It rejects the idea that making any universalizable judgements is possible, as such judgements are inevitably based upon abstract dualisms in which animals are marginalised and less valued per definition. It is thereby explicitly non-utilitarian and strives for a world of inter-species justice in which ‘recognition of mutuality and interdependency would be the dominant ethos’.^[65] Ecofeminists are thus committed to an intersectional approach, thus taking into account the ways in which multiple forms of oppression intersect.^[66]

Ecofeminism generally rejects the idea that moral status and value has to do with rationality and reason, autonomy and liberty, as was long purported by Enlightenment authors. Instead, it is the relationality and vulnerability of life that demand an ethical response.^[67] This ontological vulnerability arises from our bodily existence and the fact that our lives are dependent on others: we are susceptible to injury, illness, and death, and this susceptibility is a fundamental part of what it means to be human. Acknowledging our shared vulnerability can form the basis for ethical relations of care, which according to Carol Adams begin as ‘attention to another because of the other’s physical, mental, or emotional needs’.^[68] Consequently, rather than focusing on the capacities and intelligence of other animals, it becomes clear that it is our shared vulnerability that forms the basis for ethical consideration.

As is the case in the broader posthumanist literature, ecofeminism criticizes the abstract nature of utilitarian formulas, requiring attention for animal individuals. In this sense, ecofeminism aligns with critical views from STS (Science & Technology Studies) and sociology that demonstrate how animals are de-objectified and de-individualised through a specific rhetoric used in the contexts of the lab.^[69] In the words of Birke, ‘[i]n the laboratory, [rats] are both animals and not quite animals; they are vermin in the pipework under the lab but a useful piece of equipment in the lab; they are equipment, yet we can be mindful of their minds; they are bearers of disease while promising to liberate us from disease.’^[70] As Deborah Slicer points out, such formulas that de-objectify and de-individualize animals reproduce and maintain the idea that we must choose ‘between ‘us’ (human beings) and ‘them’ (animals)’.^[71] In the words of Warren, utilitarianism is therefore a ‘logic of domination’, meaning ‘a structure of argumentation which leads to a justification of subordination’.^[72] In the context of animal testing, this leads to a situation where the issue at stake is not the question of whether animals should be used, but more pertinently one of when they should be used, that is automatically brought to the foreground. Instead, ecofeminism makes a central place for care, love, trust, presupposing that relationships are central to the understanding of who we are. This also means reconceptualizing what it is to be a human being.

With regard to laboratory settings specifically, ecofeminism thus furthers the posthuman emphasis on individuality and care, with a particular focus on animals as vulnerable individuals. According to Maneesha Deckha, (vegan) ecofeminist perspectives are better placed than the Haraway-inspired school of thought to form an alternative to the existing legal framework that largely legitimises animal abuse, as non-critical posthuman relationism may translate into a troubling application of Haraway’s work in which domination of humans is still being legitimised.^[73] Nevertheless, as their insights remain pluralistic and theoretical, it is now the task of ecofeminism to further translate concepts of care and relationality into concrete legal entitlements.^[74] To some extent, an attempt in that direction was made by Ani Satz, who argues for a legal approach to animals based in a recognition of their vulnerability.^[75] Animals could then be assigned a status of, as proposed by Deckha, ‘legal beingness’, which is to be distinguished from the rationalistic masculine perception of ‘legal persons’.^[76] Such approach would, rather than allowing abstract balancing practices, require animals’ protection with fundamental rights, yet in a way that respects their vulnerability and relationality. Such approach thus circumvents the focus on pain, pleasure, and similarity of animals to humans, opening the door to a more attuned and ‘more-than-human’ legality.^[77]

3. Capabilities and animal dignity

Martha Nussbaum’s capabilities approach offers a framework for considering justice for animals.^[78] This approach focuses on what individuals – human or animal – need to live a flourishing life. Nussbaum argues that justice requires ensuring that animals have the capabilities necessary for their well-being. This perspective shifts the focus from minimizing suffering to promoting positive well-being and flourishing. By emphasizing capabilities such as health, play, and freedom from fear and pain, Nussbaum’s approach provides a more comprehensive and ethical framework for animal welfare that goes beyond the utilitarian focus on harm minimization.

The works of Martha Nussbaum can be placed in the school of ‘indistinction’, which is to be distinguished from the moral individualist way of thinking which much of animal law inherited from, among others, Peter Singer and Tom Regan.^[79] According to Nussbaum, the cost-benefit analysis is morally limited, and instead of continuing with its application, we should better ‘think how we might design a society where such unpalatable choices do not confront people, or confront them less often’.^[80] Rather than starting from a human-animal binary, she argues that we should recognise all different species as having dignity, striving to flourish as the beings they are.^[81] In her work, she builds on the idea that animals have dignity, albeit different ‘types’ of dignity than the human species.^[82] In other words, a horse will need to fulfil different needs and capabilities in order to live a life with dignity than a mouse, and again different capabilities than a human being. Whereas, for some, living a dignified life demands social interaction with other species, for others, a more solitary life is the dignified way of living. In this way, we can think about the moral entitlements of other animals in the context of our societies, without falling into the old habit of comparing animals to humans in order to determine their moral worth.

The capabilities approach is explicitly non-utilitarian. It has a Kantian side on the one hand (the recognition that animals have an intrinsic value), but also a clear Aristotelian influence, with the emphasis on ‘species-specific flourishing’ in which the notion of ‘telos’ is incorporated. The grounding in the idea that other animals have dignity as well, furthermore brings in the notion of ‘respect’. Obligations to animals are owed directly to the individuals, and rather than being pathocentric (centred on the experience of pain), it has a more biocentric grounding requiring attention to the way in which animal individuals develop into the being they are. Rather than balancing interests, the capabilities approach is about justice: it sets out the kind of obligations the state has to facilitate the development of flourishing for all living beings to a minimum threshold. Importantly, when conflicts arise, the solution is not the balancing between different interests, because sacrificing one for the other to undo the injustice is impossible. Instead, there is simply no justice when beings cannot reach a minimum threshold. In this context, Nussbaum speaks of ‘tragic dilemmas’, for the situations in which no easy solutions can be found.^[83]

The situation of laboratory animals is, according to Nussbaum, an example of such a tragic dilemma. Even though this classification is questionable, as there is no interest on the side of laboratory animals to be used in testing, and only interests on the human side (so where is the dilemma?), her discussion sheds light on the way in which the capabilities approach can help us to think about animal testing in a different way, circumventing the utilitarian algorithm. Essentially, the perspective changes the way in which to address and regulate animal testing. Rather than ‘legitimizing’ it through the overarching human benefit, the more pressing questions, from this perspective, are for instance whether an animal can have a life ‘worth living’; whether or not they can reach a minimum threshold of flourishing. Rather than imposing general rules, it is furthermore important to be aware that ‘each type of creature has a distinctive form of life and that this form of life dictates what can and cannot be a harm for it.’^[84] Hence, what may be a harm to a certain type of animal (e.g. being kept in solitary confinement), may not be harm to another species (as for that species, a solitary life would be a dignified life). This more species-sensitive approach could inform animal testing law in a different way, incorporating an attentiveness for other-than-human forms of being.

IV. Regulating laboratory worlds: how to shape the law addressing ‘morally messy affairs’

Through the discussion of some alternative approaches to animals in laboratory settings, it has become possible to think about animal testing law in a less utilitarian matter, foregrounding the fact that animals are individual beings with individual lives with whom humans engage in relations. The question that arises at this point, is whether and if so, in what way, these different theories can be an inspiration for the development of the legal approach addressing animal testing in the future. In this section, I will discuss this question, arguing that, firstly, there are more relevant considerations than only the utilitarian dimension, and secondly these dimensions can be translated into practical recommendations for how to shape a more animal-attuned animal testing law, which will foster further implementation of the 3R principles. Most important here is the idea that animal testing, by its very definition, is unethical, and this cannot be made undone by opposing the pain caused to animals with human benefit. In other words, the algorithm behind animal testing law needs to be reconsidered. These recommendations can be regarded as going beyond mere ‘welfarism’, steering us towards a legal sphere in which respect for animals’ intrinsic value as individuals stands central.^[85] Hence, they assume that a sudden revolution to full non-animal testing under an abolitionist model is unlikely, yet that the existing framework can and should be substantively improved in order to facilitate a transition towards the minimal use of animals, hereby bringing the aim of ‘full replacement’ within reach.

1. The importance of deontological constraints

First, to prevent utilitarian thinking from collapsing into a bottomless calculation, some limits are necessary to determine when using animals is not allowed. This could be regarded as the deontological dimension of animal testing law: what are the limits within which animal testing may still take place in our current societies? There are different ways in which such deontological constraints can be shaped: for instance, regarding the kind of interests for which animal experimentation may take place, and/or the severity of harm that can be caused.

First, deontological limits should be established regarding the kind of interests that can justify using animals in experiments. As we have seen, this has been done in Switzerland, where certain interests may never justify testing on animals. For instance, entertainment or aesthetic reasons can never override animals’ interests in not being harmed. In this way, the types of experiments that can be conducted are limited from the outset, before any balancing takes place. Experiments done for such reasons may simply never use animals. The number of interests will expand as new Non-Animal-Methods (NAMs) become available.^[86] In this way, the number of animals will reduce substantively, contributing to compliance with the 3Rs.

Regarding the severity of harm, absolute limits could be set on the degree of harm that may be caused. For instance, when no anesthesia is possible or available, this limit would possibly be exceeded, rendering the experiment unethical. An example of an initial step in this direction can be found at the European level, where the idea of an ‘upper limit of pain’ is introduced in Member State legislation, beyond which no animal experimentation can take place. The preamble of the main EU Directive on animal testing states that ‘severe pain, suffering, or distress, which is likely to be long-lasting and cannot be ameliorated, should be prohibited.’^[87] Article 15 further develops this requirement, demanding States to ‘ensure that a procedure is not performed if it involves severe pain, suffering, or distress that is likely to be long-lasting and cannot be ameliorated.’^[88] As Beauchamp and Morton argue, this upper limit could be determined in terms of duration and intensity.^[89] However, as seen in the discussion of Belgian, Dutch, and Swiss law, none of these ethical frameworks fully implement such an upper limit. On the contrary, in the Swiss case, the starting point is that if the benefits for society are sufficiently large, it can never be a violation of animal dignity.

Adding deontological limits before any balancing between human and animal interests takes place would be a concrete way to implement the requirement to reduce and replace animal testing. It is essential, however, for these limits to be explicit in legislation to prevent experiments that exceed the constraints from ending up in ethical committees. As argued, due to the problematic nature of balancing human and animal interests, the chances are small that such experiments would be rejected by a committee. Hence, incorporating deontological limits in the legal approach to animal testing would narrow the kinds of experiments that are deemed allowable from a legal perspective and thus are put before the committee to begin with. On top of that, it would give an incentive to the development of non-animal methods, hereby contributing to a full replacement of animals on the long run.

2. Ensuring respect for animal flourishing

Apart from such negative constraints, there is also a need for a more positive duty to maximize the opportunities for animals to flourish as the beings they are within the context of their laboratory lives. We could regard this as the capabilities-dimension: how can the flourishing of animal subjects be supported and facilitated? Relevant factors here include, for instance, the need for some animals to live in groups and socialize with others, the need for enrichment materials to stimulate the development of natural capabilities, and the need to reach a minimum threshold of flourishing. Such a minimum threshold of flourishing would establish a more positive measure – an actual duty of care relating to the facilitation and support of the development of inherent animal capacities, encouraging laboratory workers to see animals as individuals rather than things. Rather than only looking at the pain and suffering of animals, the determination here could consider whether, or to what extent, the constraints of lab life can be mitigated by implementing enrichments, providing opportunities to interact with others, and offering other positive incentives for animals to develop their basic capabilities.

A related aspect that comes forward from the more animal-focused approaches discussed here is the idea that in developing the law, one should start from the intrinsic value of the animal, taking into account their species-specific needs, in order to determine whether or not they can be used for experimentation, rather than the other way around. In other words, instead of starting with the needs of the experiment, one would need to start from the animal and his or her needs. From a legal perspective, this would mean that the choice of which animals can be used for experiments would be severely limited. We have seen how Martha Nussbaum proposes to take the species-norm as a guideline in determining how animals should be protected. This could be a reason to decide that only certain species may be used in experiments (which, to some degree, is already the case in some jurisdictions that prohibit testing on certain animals). Other species could simply not be used, as experimenting would mean their flourishing would be compromised to too large an extent. The focus would lie upon what flourishing would mean for that species, taking account of their entire lives. For instance, if animals would go to animal sanctuaries after having been used for experiments, their use would be more legitimized, as in the whole of their lives it may still have been a life worth living. Such an approach would change the current assumption that ‘killing’ animals is not really doing them any harm and reshape the way in which the legal framework is shaped.

3. Regulating human-animal relations

Lastly, the insights from the literature discussed here suggest that, instead of engaging in the abstract determination of costs and benefits, it is important to not lose sight of the human-animal relations of co-creation within laboratory settings as a relevant unit of regulation. As discussed, various ethnographers have pointed out that technicians working in labs tend to engage in acts of care that far exceed the legal requirements, trying to alleviate the harms caused to animals. Indeed, rather than animal abusers, it is important to see researchers and lab technicians as people who care for animals and would do their best not to harm them unnecessarily. It is this relationship between lab workers and the animals that is totally left out of sight in the utilitarian algorithm. In order to do justice to this dimension, one could think of, for instance, the need to put in place elaborate education programs (insofar as they do not exist yet) that teach lab workers how to make animals feel at ease in the testing environment and help them to appreciate the specific needs of different species. This could then also be a factor of influence in deciding whether or not an experiment involving animals should be allowed. If the researcher can show a serious engagement and experience with animal welfare, that may be a reason to prioritize him or her over researchers that have no such experience. For the animals involved, this may make a difference of day and night. We could call this aspect the dimension of the investigators’ ethic.^[90]

To some extent, the idea that the contextual situations of the animals used in a particular experiment are important is reflected by the call of researchers to add a fourth ‘R’ to the three Rs: the R of Responsibility.^[91] The fourth R refers to concerns around promoting animal welfare by improvements in experimental animals’ social life, as well as effective involvement in the professionalization of the public discussion on animal ethics.^[92] Some research institutions, such as the Max Planck Institute, commit themselves to such a fourth R, stating explicitly that there is additional attention among researchers for, among others, ‘improving the social life of laboratory animals.’^[93] Hence, such a fourth R partly translates the need for more attention to the efforts of researchers to handle their animals with the required care and attention, thus fostering the dimension of the investigators’ ethic in a laboratory context.

V. Conclusion

The legal approach to the regulation of animals used for scientific purposes is driven by a utilitarian algorithm, in which the potential benefits to humans are weighed against the pain and suffering caused to animals. This utilitarian algorithm shines through most legal instruments in different jurisdictions, albeit under different disguises. Even the Swiss approach, based on the concept of ‘dignity,’ essentially collapses into utilitarianism by failing to create an upper limit to the strain caused to animals. The utilitarian algorithm makes the use of animals seem logical and ethical as long as the calculation ends up above zero, and thus rather legitimizes animal testing than fundamentally questioning it. In this way, the algorithm greatly contributes to the inefficiency of the principle of 3Rs until now, disregarding animals’ intrinsic value as living beings.

As has been pointed out by various ethicists, the way in which utilitarianism is employed in this context is rather problematic. The abstract nature of the potential benefits, the accumulation of pain and suffering across individuals, the unequal starting positions, and the absence of any upper limits of pain render the determination of whether animal use is allowed to arbitrariness and intuition, with the result that only very few extreme forms of animal testing will be deemed unjustified. Hence the need for a multi-dimensional approach, in which more than just the benefits and harms are taken into account, is in order to turn the 3Rs into reality.

For inspiration, recent literature that approaches laboratory animals in non-utilitarian ways was discussed in this context. Even though such critical perspectives may not be directly translatable into concrete standards or norms to complement the existing legal framework, they do provide a different way of thinking about animals in laboratory settings, ensuring attention to their individuality, different lives and types of flourishing, and vulnerability. These insights, then, may help us reshape the ‘standard algorithm’ of animal testing law, giving rise to a more elaborate set of considerations that were translated into: a) the deontological dimension (adding absolute limits on types of interests or severity of pain that can be caused), b) the capabilities dimension (emphasizing positive duties that facilitate species-specific animal flourishing and ensure a minimum standard of life), and c) the investigators’ ethic dimension (taking into account the education and animal-sensitivity of researchers, in order to ensure they approach their research subjects with care). Most importantly, such considerations should come in before any type of balancing takes place. Essentially, this would mean that the number of experiments ending up before animal ethics committees would decrease, bringing the 3Rs into practice. Hence, such suggestions may, in the long run, help to steer animal testing law in the right(s) direction, with the eventual goal of replacing all living animals with NAMs. Nevertheless, for now, the main aim of this article is simply to contribute to thinking differently about animals in a laboratory setting, diminishing the presence of the utilitarian lens in this regard.

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