Validating Veganism in Resistant Legal Systems – Part 1

by Dr Jeanette Rowley
Credit: www.vbgov.com

An important principle of human rights is that under the right to freedom of conscience, holders of non-religious and religious beliefs are to be given equal protection. The reason for equality of protection is that both types of beliefs concern sincerely held deep convictions. It is not uncommon, however, to find that human rights and equality law systems implement a hierarchy of protection, whereby religious beliefs are given priority, and holders of non-religious beliefs are required to articulate how their beliefs correspond, in significance and importance, to religious beliefs. For example, vegan applicants making a case for unlawful interference with the manifestation of their ethical convictions may come across a requirement to explain how veganism addresses questions about human existence and purpose, how it constitutes a cohesive belief ‘system’ or how it constitutes, in similar ways to religions, a ‘philosophical touchstone’ of life.

Human rights treaties do not define the right to freedom of conscience in order to avoid restrictions and limitations that would effectively stagnate democracy. In the European system of human rights there are many examples of the broad scope applied to the right to freedom of conscience. The European Court of Human Rights applies what might be regarded as a sensible criteria, asking if the belief in question is important, cogent, cohesive, serious, worthy of respect in a democracy, whether it concerns a weighty and substantial aspect of human life and behaviour, if it reflects the integrity of the person and whether it conflicts with the fundamental rights and freedoms of others. Complying with a duty to interpret the right to freedom of conscience in the broadest possible way, the European system of human rights affords protection for believers in, for example, Krishna consciousness, Druidism, veganism, pacifism, atheism and agnosticism. In the UK, applicants can be protected under equality law if the belief in questions is: genuinely held, a belief rather than an opinion, a weighty and substantial aspect of human life and behaviour, cogent, serious, important, worthy of respect in a democratic society, compatible with human dignity and not in conflict with the fundamental rights of others. Under this criteria, individuals with a variety of convictions have been afforded protection.

At the International Vegan Rights Alliance conference, held in Glasgow July 2018, Barristers Camille Labchuk and Samantha Kompa gave a presentation in which they outlined the five key considerations that are taken into account when considering whether or not a belief can be protected under the Ontario Human Rights Code ground of creed. The considerations are that the belief in question:

  1. is sincerely, freely and deeply held;
  2. is integrally linked to a person’s identity, self-definition and fulfilment;
  3. is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices;
  4. addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence;
  5. has some “nexus” or connection to an organization or community that professes a shared system of belief.

A brief comparison of the applicable criteria reveals similarities, and vegans, advocates and lawyers will have no difficulty arguing under considerations 1, 2, 3 and 5. There is, however, one important difference; a vegan taking a case in Ontario needs to be prepared to articulate how their belief ‘addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence’. The Ontario Human Rights Commission explains the requirement as follows:

This draws on statements in Edwards BooksR. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at 759) and R.C. v. District School Board of Niagara 2013 HRTO 1382. In Edwards Books, the Supreme Court of Canada alludes to the nature of beliefs protected under section 2(a) of the Charter:

The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices.

This also draws on indicators for religion discussed in Bennett v. Canada (Attorney General), 2011 FC 1310 (CanLII) at para. 55 rev’d. on other grounds 2013 FCA 161 such as:

  1. Addresses ultimate ideas…about life, purpose and death;
  2. Contains metaphysical beliefs which transcend the physical and apparent world;
  3. Contains a moral and ethical system;
  4. Is comprehensive, providing a telos, an overarching array of beliefs that coalesce to provide the believer with answers to many, if not most, of the problems and concerns that confront humans.

While this policy recognizes the distinctness of religious beliefs from other kinds of beliefs, the criteria here do not preclude the possibility of a comprehensive non-religious belief system being a creed under the Code.

Although some decisions under the Code do seem to indicate that ‘Creed’ could protect holders of non-religious beliefs, key consideration 4 may present difficulties for non-religious vegans.

Similarly, in Austria, academia and the judiciary consider veganism to be little more than a hobby, and its dietary practice ‘dangerous’. I am reliably informed by my associate Mag. Jur. Petr Kudelka, that the relevant term ‘Weltanschauung’, which refers to a comprehensive world view that includes conceptions and understandings of life, excludes veganism and cannot be relied on by vegans seeking redress for interference with their ability to live practically as a vegan in their daily lives. Though the European Union imposes a requirement that member states acknowledge the sentient status of nonhuman animals, the possibility of a vegan ‘tierfreundliche Weltanschauung’ (animal friendly world-view) succeeding in court is highly unlikely.

Applicants in all legal systems can, of course, refer to human compassion, the concept of the ‘sanctity of life’, the teachings of Tolstoy et al, and the ‘respectable philosophical tradition’, explained by Judge Pinto of Albuquerque, as advocating ‘a change in the way humans deal with animals, based on the premise of the shared nature of all human and non-human animals.’ Pinto cites the philosophers Montaigne, Rousseau, Voltaire, Bentham, Schopenhauer and Bertrand Russell as some of those who endorse this philosophical tradition. The problem, though, is that the relevant and important concepts of philosophy on compassion are not sufficiently integrated to explain human life in terms of a telos or offer an overarching philosophy of life, and none of the named great thinkers articulate a sufficiently robust anti-anthropocentric philosophy that can help vegans explain, in resistant legal systems, how their beliefs constitute legitimate and serious comment on the ‘big’ questions, such as the essence of humanity, human identity and behaviour, and, thus, do not help explain the real possibility of a different order of anti-anthropocentric and anti-speciesist existence.

The question is, therefore, how can vegans push through restrictive legal boundaries and express veganism in the terms required by seemingly impenetrable legal systems? Part 2 of this extended blog is inspired by the philosophy of Emmanuel Levinas and aims to support vegans by explaining the principles of his powerful philosophy of ethics. Levinas’ key ideas about human life, meaning and purpose may offer vegans some additional conceptual tools to articulate, in overarching terms, their convictions.