Professor Thomas G. Kelch obtained his law degree from the University of Michigan, a Masters in Philosophy from the University of California, Irvine, and an MBA from the University of Southern California.  He practiced law for a number of years in the area of corporate bankruptcy, before becoming a professor at Whittier Law School in Southern California.

Tom has taught, written and spoken on Animal Law topics since 1995 and has focused primarily on the following issues:

What entities are entitled to moral consideration and what characteristics define entities that are entitled to moral consideration? Assuming that there is or should be a connection between morality and the law, this issue can be viewed as defining the universe of entities that are entitled to the protection of the law, through the granting of rights or through other legal mechanisms.

Animals as Property: The legal categorization of animals as property is perhaps the greatest impediment to legal progress on the treatment of animals.  This issue ties in with the issue of the entities entitled to moral consideration.  If animals are entitled to moral consideration, then presumably they should not be categorized as property.

Feminism and Animal Law/The Emotive and Animal Law: The “Western Male” world view is what has gotten us to where we are on animal issues.  I believe that the Feminist perspective on animal issues is one that needs to be further analyzed and applied to animal issues to help push forward the animal agenda.  In particular, recognizing that the emotive, compassion and caring, is relevant in making moral and legal decisions, can help tie the feelings that most people have about animals to action on animal issues.

The First Amendment and Animal Experimentation: Arguments have been made that animal experimentation should be protected first amendment speech.  This particularly American argument is specious for a number of reasons rather more complicated than can be described briefly.

International Animal Law Issues: Tom has taught a class in Europe for 6 years on International Animal Law issues. The focus of this class is primarily on issues of animals in agriculture and animal experimentation under EU Regulations and Directives, with some review of laws from other countries, including Sweden and Australia .  Another major issue that Tom feels is of great importance in the international arena is the impact of the WTO on animal issues.

Our Interview with Thomas Kelch
1. How did you become involved in the field of animal law?
Becoming involved in animal law for me was something of a personal evolution.  While I always felt compassion and empathy toward animals, I was, until about 1989, an omnivore.  After I started living with my wife, who was a vegetarian and much involved in animal rescue, I became vegetarian and more active in animal issues.  In about 1995, I discovered that there were a few schools in the United States offering animal law classes and proposed such a class at Whittier Law School.  My proposal was approved and I have since that time taught an animal law class almost every year at Whittier and for five of the last six years have taught an international animal law class in Whittier summer programs in Europe.  During this time I have also written a number of articles and have spoken at conferences on animal law issues.  (By the way I invite any students reading this to consider attending Whittier’s summer program in Toulouse, France where I plan to teach the class again in 2008.  Toulouse is a great town!)

2. You have previously written about the link between feminism and animal law. In what ways do you see the two areas as being related?
The connection between the two is both historical and conceptual.  While I am not a historical scholar, it is my understanding that many of the first humane societies and movements to protect animals were started by women who were, in the late 19th and early 20th centuries, also involved in various women’s social movements, like women’s suffrage.  For example, the first animal shelter in the U.S. was created by the Women’s Humane Society in Pennsylvania.  Thus, there has been a longstanding connection between women’s movements and action to protect animals.

The connection among feminism, women and animal issues is often brought home to me in my classes, since it is frequently, though not always, the case that my animal law classes are largely female.  This, I believe, is a result of the cultural phenomenon that perceives women as the compassionate and caring ones, while men are expected to be “macho” and without feelings about much at all, let alone animals.

Conceptually, feminist theory provides a unique perspective for the analysis of animal issues.  Most of the writing on animal issues has been done from the perspective of the “western male” way of looking at the world.  For example, in many works on moral issues relating to animals, notably Peter Singer’s Animal Liberation, authors purposefully distance themselves from being “animal lovers” or having any emotional bases for their views.  Instead, they claim, their views are solely the result of rational, logical arguments.  This emphasis on logic and rationality is part of the western male canon.

Feminists, in contrast, tell us that morality is not founded on rational arguments, but based on feelings of compassion and empathy with others.  The idea that morality has its source in emotions rather than logical argument is not really a new one; it is one that David Hume advanced, but has been adopted and refined by many in the feminist movement.  While feminists do not eschew logic and rationality, they bring the element of the emotive--compassion and empathy--into the dialogue and I believe, along with David Hume and the feminists, that the emotive is (or should be) the foundation of our moral theories on animal and other issues.

For further reading on this issue one can look at my article, “The Role of the Rational and the Emotive in a Theory of Animal Rights”.  I also suggest looking at a new (or yet to be published) book edited by Carol Adams and Josephine Donovan, The Feminist Care Tradition in Animal Ethics.  I do not know whether this book has yet been published, but there is an earlier version of the book, edited by the same people, that has been out for a number of years called Beyond Animal Rights: A Feminist Caring Ethic for the Treatment of Animals.

3. You have also explored the suggestion that animal experimentation is protected by the first amendment right to free speech. Can you outline the basis of your work on this issue?
To outline this issue, I need to engage in some oversimplifications.  A simple form of the argument that animal experimentation is protected by the First Amendment to the U.S. Constitution is:
a.   The First Amendment protects freedom of speech.
b.   Scientific experimentation, including animal experimentation, is a “necessary prerequisite” to certain kinds of scientific speech.
c.   Necessary prerequisites to protected first amendment speech are also protected first amendment speech.
d.   Therefore, animal experimentation is protected first amendment speech.

The idea is that there is an intimate connection between the actions performed in an animal experiment and the speech about that experiment and, therefore, the actions involved in the experiment are protected in the same way as the resultant speech.  There are a number of problems with these types of arguments.  First, it clearly is not the case that “necessary prerequisites” to speech are always protected.  For example, if I should want to write about how it feels to murder a human being, the “necessary prerequisite” to this speech, committing murder, would not be protected by the First Amendment.  Moreover, conduct, as opposed to pure speech, is given less protection than speech itself.  Thus, conduct, like animal experiments, is always subject to a lesser level of First Amendment protection.

At bottom, it seems that what animal experimenters are arguing is that science is or should be “special” in First Amendment jurisprudence, and is therefore subject to protection that other forms of conduct are not.  There is, however, no Constitutional, historical or other basis on which to claim this privileged position for science.  Science is just another group activity that is explainable in sociological terms and that may be regulated in the same way as other activities.

4. You have taught international animal law in Europe for six years.
a.   Does your course focus on:
i.   International ‘themes’ in the legal system’s treatment of animals; or
ii.   What international legal instruments are in place or could be put in place to protect animals?
My focus in this class is largely on European law, although I look at Australia’s Animal Experimentation Code.  I look primarily at EU Regulations and Directives, Swedish law and English law relating to use of animals in agriculture and in animal experimentation.  While we focus on a lot of detail in looking at these documents, I also bring in discussions of themes, commonalities and differences between the approaches taken in these various laws.

b. Why do you think the US is lagging behind Europe in its treatment of farm animals?
My answer to this may sound cynical and will not likely make me popular with many in the U.S., but I think that there are a number of  reasons the U.S. lags behind Europe (if not a major part of the rest of the world) on animal issues.  One reason is the “cowboy culture” that exists in the U.S.  This culture is very macho and does not see animal interests as important. 

A perhaps more important reason is the political system in the U.S.  Elections in the U.S. are controlled by corporate money (or perhaps more accurately, the entire government is controlled by corporate interests).  Corporate money comes from various sources, including those involved in the meat industry and those in the animal experimentation industry.  While politicians may plead that the money does not influence their decisions, it does.  As a result, getting any significant legislation passed in the U.S. that protects animals, either in agriculture or animal experimentation, is to say the least, extremely difficult.  So it is my view that animal issues are not likely to get any real positive attention by the federal government until the mechanisms for funding elections in the U.S. are fundamentally changed and I do not see that happening soon.

c. What are some of the recurring questions that have been raised by your students?Perhaps the most often asked question is, “How can I get involved in the animal law field”?  Many of my students are committed to this area of the law and want to find a way to make a living at it.  While when I first started teaching this subject it would have been very difficult to have a practice focussed on animal law, the opportunities, both with animal organizations and in private practice have expanded considerably.  I frequently now get updates from former students who, though they may not be practicing just animal law, are taking on significant cases relating to animal issues.

Perhaps an even more telling question I get is one that I get both from students and from lay people when I happen to tell about my work in animal law.  The question I get here is, “What is animal law”?  I guess this means that we, as people concerned about animal issues, are not getting a message out to the general public.  In other words, we are generally “preaching to the choir”.  I believe that if the general public knew more about animal issues and what is really going on in the world, there might be more positive change.  The problem, of course, is how to get that message out.  It costs money to do so and there are moneyed interests with a vested interest in seeing to it that this information does not get disseminated.  Unfortunately, I do not know of a solution other than for animal organizations to raise more money and try to broaden the groups of people to which their message is communicated.

5. To what extent do you think animals can be protected (e.g. through litigation or legislation) within a system that classifies them as property?
I think that without changing the property status of animals all that will ever be accomplished in the area of protecting animals will be continued hole and corner reform that amounts to making the prisoners lives slightly more liveable.  For there to be fundamental and significant change, the property status of animals must be abolished.

My perspective is as an advocate of rights for animals.  As we know, property does not and cannot have rights.  Thus, within present legal structures it is simply not possible to achieve “rights” without tearing asunder the legal concept of animals as property.  There has been much written on this subject over the years, including my article “Towards a Non-Property Status for Animals”, which was my first animal law article.

There is some case law in the U.S. that states that at least companion animals have some status other than that of property (although these cases are not entirely clear on what this other status is).  There are also, as many readers probably know, a number of efforts in several countries to take a first step in this direction by pressing legislation and court cases asserting personhood status for great apes.  If there is success here, this is a slippery slope that we can happily slide down.

6. Do you have any words of wisdom to share with Australia's budding animal lawyers?
You will have to excuse my lack of real understanding of the politics and culture of Australia, since I have unfortunately not visited your country.  My feeling on this subject though is that perhaps animal lawyers in Australia have the opportunity to move Australia into a position of world leadership on animal issues.  Many point to the Australian Code on animal experimentation as a model for other countries.  While I think that animal experimentation should simply be banned, the Australian Code is rather enlightened when compared with regulations (or lack thereof) of most other countries.  This is just one step and many others need to be taken, but assuming that the politics of Australia are not so highly controlled by corporate interests as in the U.S., there is perhaps more room for making progress on these issues in Australia than in the U.S. or other countries.  So I hope to see Australia as a beacon of light amid the prevailing darkness.

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