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204 Chapter 7
and whether it represented a worthy social purpose; the second concerned
an evaluation of the relationship between the means adopted and the
purpose in question; and, finally, a determination had to be made
concerning proportionality, namely whether there was a correct balance
between the suffering caused to the animal and the purpose and means
adopted that caused such suffering. 98 These tests, the justice recognised,
were similar to those used in the context of limiting human rights. 99
In considering the purpose of the regulations, Justice Strasberg Cohen
saw their aim as being to minimise the suffering of the geese. She found that
it is quite clear that the practice of force-feeding causes the geese great
suffering and that existing regulations had not minimised that suffering. 100
Secondly, in considering the means adopted, she recognised that they
were seeking to allow for the maintenance of the practice of foie gras
production. Whilst the production of food was more important than pure
entertainment, Justice Strasberg Cohen stressed the importance of
distinguishing between ‘luxury’ and ‘necessary’ food products. The
‘luxury’ nature of foie gras was a factor that had to be considered in the
balancing process when considering the grave harm that was caused to
the geese. 101 Similarly, the nature and weight of existing agricultural
interests in maintaining foie gras production had to be considered but was
not decisive. 102
Finally, the benefit obtained from the production of foie gras had to be
weighed against the harm caused to the geese: Justice Strasberg-Cohen
found that the agricultural interests had been given too much weight and
that of the geese too little. She found when balancing the benefits and
harms, that the current regulation by allowing the continuation of forcefeeding
of the geese failed the test of proportionality. 103
Justice Eliezer Rivlin concurred with Strasberg-Cohen. He was
sympathetic to the important claim that animals cannot be made to suffer
simply for gastronomic pleasure or profit, and again, considered the
matter as one of proportionality between benefits and harms. He recognised
that animals ‘possess a soul that experiences the feelings of happiness and
grief, joy and sorrow, affection and fear … All would agree … that these
creatures feel pain inflicted upon them by physical injury or by violent
intrusion into their bodies.’ 104 The problem with justifying the
continuation of the industry simply for the livelihood of those who raise
98
Noah (n 94 above) para 10 quoting Let the Animals Live v Hamat Gader Recreation Society LCA
1684/96, IsrSC 51 (3) 832.
99 Noah (n 94 above) para 11.
100
Noah (n 94 above) para 22.
101 Noah (n 94 above) para 23.
102 Noah (n 94 above).
103
Noah (n 94 above) paras 22 & 23.
104 See Noah (n 94 above), the Opinion of Justice Eliezer Rivlin.