Do regulators of animal welfare need to develop a theory of psychological well-being?

The quest for a "theory of nonhuman minds" to assess claims about the moral status of animals is misguided. Misframed questions about animal minds facilitate the appropriation of animal welfare by the animal user industry. When misframed, these questions shift the burden of proof unreasonably to animal welfare regulators. An illustrative instance of misframing can be found in the US National Research Council's 1998 publication that reports professional efforts to define the psychological well-being of non-human primates, a condition that the US 1985 animal welfare act requires users of primates to promote. The report claims that "psychological well-being" is a hypothetical construct whose validity can only be determined by a theory that defines its properties and links it to observed data. This conception is used to contest common knowledge about animal welfare by treating psychological well-being as a mental condition whose properties are difficult to discover. This framework limits regulatory efforts to treat animal subjects less oppressively and serves the interests of the user industry.A more liberatory framework can be constructed by recognizing the contested nature of welfare norms, where competing conceptions of animal welfare have implications about norm-setting authority, as it does in other regulatory contexts, e.g., food safety,. Properly conceptualized welfare should include both the avoidance of distressful circumstances and the relationship between the animal's capacities to engage in enjoyable activities and its opportunities to exercise these capacities. This conception of animal welfare avoids appropriation by scientific experts. The development of the psychological well-being regulation is a good illustration of how social norms are contested and then appropriated, and a critique of this appropriation shows how it can be challenged.