The late 1970s marked the emergence of the animal "rights" movement, which "retained the animal welfare tradition's concern for animals as sentient beings that should be protected from unnecessary cruelty," but added "a new language of 'rights' as the basis for demanding" the end of institutionalized animal exploitation. [2] The need to develop a new vocabulary was clear not only in light of certain theoretical inconsistencies between the two positions, but also because the most ardent defenders of institutionalized animal exploitation themselves endorsed animal welfare. Almost everyone -- including those who use animals in painful experiments or who slaughter them for food -- accepts as an abstract proposition that animals ought to be treated "humanely" and not subject to "unnecessary" suffering.
As Bernard Rollin writes, rights are "moral notions that grow out of respect for the individual. They build protective fences around the individual. They establish areas where the individual is entitled to be protected against the state and the majority even where a price is paid by the general welfare." [3] For example, if X's interest in free speech is protected by a right, that generally means that X's interest will be protected even if the general welfare would benefit from depriving X of that right simply because people strongly disagree with the content of X's speech.
The theory of animal rights maintains that at least some nonhumans possess rights that function in a manner substantially similar to human rights. Animal rights ensure that relevant animal interests are absolutely protected and may not be sacrificed even if it would benefit humans to do so, or if the animals whose interests are at stake are exploited "humanely" and without "unnecessary" suffering.
Animal rights theory rejects the regulation of animal exploitation and calls unambiguously and unequivocally for its abolition. Rights theory precludes the treatment of animals exclusively as means to human ends, or as the property of people. Because animals, like humans, possess certain inherent value, that value must be respected regardless of the consequences to humans of ignoring it in favor of treating animals as instruments. The rights theorist rejects the use of animals in experiments, or for human consumption, because such use violates fundamental obligations of justice that humans owe to nonhumans, and not simply because these activities cause animals to suffer.
Because the theory of animal rights is fundamentally different from that of animal welfare, a rather significant chasm separates the theory of animal rights from the social phenomenon called the "animal rights movement." Despite this ostensible acceptance of the rights position, the modern animal protection movement has failed to translate the theory of animal rights into a practical and theoretically consistent strategy for social change.
The language of rights is mostly used rhetorically to describe virtually any measure thought to lessen animal suffering. So, a proposal to provide a bit more cage space to animals used in experiments is regarded as promoting animal rights even though such a measure represents a classic example of welfarist reform. Indeed, the modern animal rights movement still embraces the nineteenth-century theory of animal welfare whose primary goal is to ensure that animals, which are regarded as property under the law, are treated "humanely" and not subjected to "unnecessary" suffering.
It would be simplistic, however, to say that the modern animal rights movement is no different from its classical welfarist predecessor. The modern movement understands animal rights as an ideal state of affairs that can be achieved only through continued adherence to animal welfare measures. This hybrid position -- that the long-term goal is animal rights but the short-term means are animal welfare reforms -- constitutes "new welfarism" whose advocates are the "new welfarists."
It appears as though the new welfarists believe that some causal connection exists between cleaner cages today and empty cages tomorrow, or between more "humane" slaughtering practices today and no slaughtering tomorrow. As a result, the animal "rights" movement, despite its rhetorical use of rights language and its long-term goal of abolishing institutionalized animal exploitation, continues to pursue an ideological and practical agenda that is functionally indistinguishable from measures endorsed by those who accept the legitimacy of at least some forms of animal exploitation.
Two very simple reasons account for the disparity between social theory and practice. First, many animal advocates believe that welfarist reform has helped to ameliorate the plight of nonhumans and that such reforms can gradually lead to the abolition of all animal exploitation. Second, although many animal advocates embrace the abolition of animal exploitation as a long-term goal, they regard rights theory as "utopian" and thus incapable of providing concrete normative guidance to inform day-to-day movement strategy and practice.
This article will explore these two assumptions and will argue that welfarist reform has not -- and cannot -- lead to the abolition of animal exploitation. Animal welfare, especially when applied in an economic system that has strong property notions, has had little, if any, success historically, and is structurally defective, tending to conceptualize the human/animal conflict in ways that ensure that animal interests will virtually never prevail. Moreover, the attribution of a connection between welfare and rights begs a fundamental moral question: If we believe that animals have moral rights today, is it wrong to compromise the rights of animals now, for example, by pursuing or supporting legal changes that facilitate supposedly more "humane" experimentation in the hope that these changes will lead to rights for other animals sometime in the future?
This article will also argue that rights theory provides concrete normative guidance for incremental change. Animal rights theory is not "utopian," and the theory contains a nascent blueprint for identifying incremental changes that will gradually eradicate the property status of animals. The incremental eradication of animal suffering prescribed by classical welfarism, and accepted as the primary normative principle of new welfarism, is per se insufficient to lead to the abolition of institutionalized exploitation. What is needed is the incremental eradication of the property status of animals.
First, Part II briefly describes various views concerning the relationship between animal rights and animal welfare. Part III then explains the theoretical reasons why animal "rights" advocates have rejected rights theory in favor of new welfarism, or the view that while animal rights is the long-term goal, welfarist reform in the short term is the only way to achieve that goal. The fundamental assumptions of new welfarism are examined in Part IV. Finally, Part V presents the preliminary outline of a program for incremental change based on rights theory.
For example, the modem animal protection movement is characterized by rights notions which, according to sociologists Jasper and Nelkin, are drawn partly from feminism and environmentalism. These characterizations embody a rejection of "instrumentalism" or "the confusion of ends and means" that reduces nature, women, and animals "all with inherent value as ends in themselves -- to the status of things and tools." [4] Animal rights advocates demand the "abolition of all exploitation of animals, on the grounds that animals have inherent, inviolable rights." [5] Rights are "accepted as a moral trump card that cannot be disputed. Justified in terms of tradition, nature, or fundamental moral principles, rights are considered non-negotiable." [6]
Anthropologist Susan Sperling claims that although traditional animal welfarists have "attempted to improve the treatment of animals in a assumptions about the human relationship to animals that have been fundamental to Western culture in the modern period." [7] Sperling argues that animal rights advocates do not want merely to reform institutions of animal exploitation; they wish to abolish that exploitation themselves to be completely separate from, and often at odds with, the mainstream humane movement...the modern animal rights advocates consider themselves to be distinctly different from the local humane society." [8]
Political scientist Robert Garner argues that "the terms welfare and rights are indicative of the key division within the animal protection movement: between those who consider that animal interests should take a subordinate, albeit important, position and those who recognize a higher moral status for animals." [9] Depending on the moral theory involved, this moral status may entail according equal consideration to animal and human interests, or it may involve something akin to "personhood" status for animals that would entitle them to be holders of rights. In any event, Garner contends that animal rights advocates, unlike their animal welfare counterparts, reject the moral orthodoxy that regards animals as "inferior" to humans. Based on their acceptance of a higher moral status for animals, animal rights advocates seek the "complete abolition of animal use for science these activities." [10]
the emergence of the current animal rights movement, the aims of eliminating cruelty and encouraging a more compassionate attitude toward animals dominated the thinking of those who gave any thought at all to the treatment of animals in America...." [11] The modern animal rights movement "does not seek humane reforms but challenges the assumption of human superiority and demands abolition of institutions it considers exploitative. Rather than asking for a greater (and optional) charity toward animals, the animal rights movement demands justice, equality, fairness, and rights." [12]
For example, the American Medical Association ("AMA") claims that animal welfare is "understandable and appeals to scientists, the public, and legislators." [13] Animal rights, on the other hand, reflects a view that is "radical," "militant," "terrorist," and opposed to human well-being." [14] Similarly, Americans for Medical Progress ("AMP"), an organization that advocates on behalf of those who use animals in research and commercial product development, recently wrote to law school deans around the country in order to warn of a "dangerous philosophy that is quickly emerging as a popular course of study in our law schools." [15] This "dangerous philosophy" is the philosophy of animal "rights," which, according to AMP, "goes beyond legitimate animal welfare issues." [16]
AMP claims that although "most Americans fully support animal welfare (the humane treatment of animals)," the "misguided philosophy" of animal rights, which recognizes that animals, like humans, may be rightholders, "is held only by a small minority in this country." [17] Interest in animal rights by law students is a "foreboding sign for anyone concerned with health care. These lawyers will be asked to protect these extremists who destroy research facilities and cripple biomedical research with excessive regulation." [18] Such regulations will "cost researchers time and money, causing Americans to wait longer for cures and treatments and pay more for their health care." [19] In a recent editorial, AMP Vice President John M. Clymer reinforced this distinction: "The protection of animal welfare is a moral imperative. The promotion of 'animal rights' extremism is another matter entirely." [20]
Frederick K. Goodwin, Administrator of the Alcohol, Drug Abuse, and Mental Health Administration of the Department of Health and Human Services, claims that the animal welfare movement has had "a distinguished history with a primary focus on the prevention of stewardship of animals involves humane care.'" [21] Goodwin claims that animal rights advocates, on the other hand, subscribe to the view that "humans and animals have equivalent rights" [22] and that "animals have intrinsic rights of their own, a notion that conflicts with the foundation of our entire legal system." [23]
According to Kim W. Stallwood, editor of The Animals' Agenda, which describes itself as an "animal rights" magazine, there are many different philosophical theories concerning animals, but none of these can be championed as being better than any others. Stallwood labels animal rights proponents use particular philosophical theories as yardsticks to measure" fidelity to animal rights ideology. He argues that such efforts are "artificially constructed devices" that are "divisive" of movement unity and "elitist." [25]
Kenneth Shapiro, president of The Animals' Agenda and co-editor of The Journal of Applied Animal Welfare Science, also exemplifies the devaluation of rights theory. The journal "publishes reports and articles on methods of experimentation, husbandry and care that demonstrably enhance the welfare of farm, laboratory, companion and wild animals." [26] Shapiro is also Executive Director of Psychologists for the Ethical Treatment of Animals ("PSYeta"), which is "dedicated to the promotion of animal welfare" and attempts "to balance the value of experimentation and other animal use against the suffering of animals." [27]
Zoe Weil of the American Anti-Vivisection Society ("AAVS") also maintains that the philosophical differences between animal rights and animal welfare are irrelevant and that only "compassion, concern and does mean something good and positive." [28] The AAVS magazine promotes publications that endorse more "humane" methods of experimentation. [29] Finally, Carol Adams, of Feminists for Animal Rights, claims that rights are patriarchal and that we should go "beyond animal rights" and accept that "sympathy, compassion, and caring are the ground upon which theory about humane treatment of animals should be constructed." [30] Sympathy, compassion, and caring are part of the welfarist paradigm that made animal protection dependent upon whether humans had "kindly" feelings toward animals and not on any notion of justice owed to nonhumans.
Even the more "radical" animal "rights" groups have distanced themselves from animal rights. Ingrid E. Newkirk, director of People for the Ethical Treatment of Animals ("PETA"), maintains that the "all or nothing" position of animal rights is "unrealistic" and argues in favor of animal welfare. [31] According to Alex Pacheco of PETA, as long as people just "care" about animals, it does not matter whether they adopt the animal rights philosophy. [32] PETA's mission statement contains no mention of animal rights.
This explicit rejection of rights theory by supposed rights advocates is becoming increasingly more apparent. Animal advocates have planned a march for animals to be held in Washington, D.C., on June 23, 1996. Principal supporters of the 1996 march include the Humane Society of the United States ("HSUS"), which supports "humane" vivisection, [33] the eating of animals raised in accordance with the principles of "humane sustainable agriculture," [34] and hunting. [35]
HSUS President John Hoyt has made no secret of his view that the and a number of other organizations have worked hard to achieve in order to distinguish the legitimate animal protection movement from the more radical elements." [36] Another supporter of the 1996 march is Don Barnes of NAVS, which also supports the use of animals in experiments despite its supposedly anti-vivisection policy. [37]
The prevailing view within the organized animal movement is that the distinction between animal welfare and animal rights is, as one leading animal advocate put it, a "distinction without a difference." [38] This rejection of rights by animal advocates does not necessarily mean that all of these advocates have simply embraced some version of classical welfarism. Many modern animal advocates see the abolition of animal exploitation as a long-term goal, but they see welfarist reform, which seeks to reduce animal suffering, as setting the course for the interim strategy.
Henry Spira of Animal Rights International ("ARI") "sees no contradiction between working for abolition and accepting reform. 'Reform is basically about strategies, abolition is the ultimate goal.... The two aren't contradictory.'" [39] Finsen and Finsen have clearly different from those of the humane movement," but "many within the movement see the possibility -- or even the necessity -- of achieving those goals by gradual and reformist means" employed by welfarists. [40] This view posits some sort of causal relationship between welfare and rights such that pursuing welfarist reform will lead eventually to the abolition of all institutionalized animal exploitation.
This view, referred to here as "new welfarism," leads to the endorsement by supposed animal rights advocates of welfarist reform. For example, claimed animal rights advocates, including groups such as PETA and NAVS, actively support welfarist legislation, such as the federal Animal Welfare Act and other admittedly welfarist approaches to regulating the use of animals in experiments. [41] PETA supports the shooting of boar in Hawaii as "far more humane" than snaring the boar. [42] Leading animal advocate Henry Spira has joined with the Foundation for Biomedical Research, which promotes the use of animals in experiments, and praises the "three R's" -- reduction of the number of animals used, refinement of procedures to minimize pain, and replacement of animals with non-animal "models" when these are available. [43] Spira has also joined with the American Meat Institute in promoting "improved" slaughtering methods. [44]
Although claiming to support animal rights, the Ark Trust, founded by Gretchen Wyler of the Fund for Animals, supports the use of animals in entertainment despite the wholly gratuitous nature of such exploitation. Ark Trust takes the position that although "opposed to animal abuse in any form, we do not believe that working with animals in films and television itself constitutes animal abuse." [45]
Singer is a utilitarian who maintains that the right act is that which maximizes the best total consequences for everyone who is affected, either positively or adversely, by the action. There are two primary types of utilitarianism.
Act-utilitarianism is the view that the rightness or wrongness of an action is to be judged by the consequences, good or bad, of the action itself. Rule-utilitarianism is the view that the rightness or wrongness of an action is to be judged by the goodness and badness of the consequences of a rule that everyone should perform the action in like circumstances. [49]
For example, an act-utilitarian when faced with a situation in which one option is to tell a lie, will judge whether, on balance, the consequences of lying in that particular case weigh in favor of the lie. A rule-utilitarian, on the other hand, would not be concerned about the consequences of lying in the particular situation, but would look to the consequences if everyone were to lie in the same or similar circumstances.
Singer endorses a version of act-utilitarianism, and argues that it is the consequences of the contemplated act that matter, and not the consequences of following a more generalized rule. There are, of course, differing views of what consequences are relevant. For classical utilitarians, such as Jeremy Bentham and John Stuart Mill, pleasure alone is intrinsically valuable and pain alone is intrinsically not valuable. Singer, however, claims to subscribe to a modified form of utilitarianism, known as "preference" or "interest" utilitarianism, which provides that what is intrinsically valuable is what "furthers the interests of those affected [by a decision]." [50] Those interests include the desires and preferences of those who are affected. Pleasure and pain matter because they are part of what humans and nonhumans desire or prefer or seek to avoid.
In Animal Liberation, Singer argues that in assessing the consequences of human actions -- including those actions affecting animals -- it is necessary to take the interests of animals seriously. Any adverse effects on animal interests must be weighed as part of the consequences of human actions. Humans fail to do this, Singer argues, because of a species bias, or speciesism, that has resulted in the systematic devaluation of animal interests.
Singer claims that speciesism is no more morally defensible than racism, sexism or other forms of discrimination that arbitrarily exclude humans from the scope of moral concern. When people seek to justify the horrific way in which animals are treated, they invariably point to supposed animal "defects," such as the inability of animals to use human language or to reason as intricately as humans. But there are severely retarded humans who cannot speak or reason (or, at least, can do so no better than many nonhumans), and most of us would be appalled at the thought of using such humans in experiments, or for food or clothing. Singer maintains that the only way to justify our present level of animal exploitation is to maintain that species differences alone justify that exploitation. That is no different, Singer argues, from saying that differences in race alone or sex alone justify differential treatment.
Singer's approach is clearly more sympathetic to animals than is classical animal welfare, which accords little weight to animal interests. It is important, however, to understand that Singer's theory is not a theory of animal rights. Garner has noted that Singer does "talk as if the killing of animals for food and their use for experimental purposes should be morally condemned per se because the infliction of pain means that they lead miserable lives." [51] Garner claims that "[s]uch a view could be taken to mean that [Singer] thinks they have a right not to have pain inflicted on them[,] [but] Singer is clear...that he is not an advocate of rights...." [52] Indeed, Singer himself refers to his theory as one of "Animal Liberation" and states that claims of right are "irrelevant:" "The language of rights is a convenient political shorthand. It is even more valuable in the era of thirty-second TV news clips...." [53]
It is easy to understand why Singer rejects rights in light of his view that only the consequences (understood in terms of the preference satisfaction of those affected) of acts matter. A right is generally regarded as "a moral trump card that cannot be disputed." [54] A right serves as a type of protection that cannot be sacrificed even if the consequences of doing so would be very desirable.
Most rights, however, are not absolute, but some rights provide strong prima facie protection and cannot be compromised without very compelling reasons. For example, overall social happiness might be increased if a person were involuntarily used in an experiment likely to result in a cure for cancer. Nevertheless, the unwilling subject has a moral and legal right not to have her interests in life or liberty traded away in order to secure that admittedly desirable result.
Thus, Singer's notion of equal consideration does not require that animals receive equal treatment, and it does not preclude the morality of a decision to exploit a human or nonhuman. As long as an animal's interests receive equitable consideration (consideration untainted by the speciesism that discounts animal interests simply because they are the interests of a supposed "inferior"), Singer's equality principle is satisfied.
This notion of equality is consistent with exploiting animals if the consequences justify that exploitation, and as long as the decision to exploit is not based on species discrimination. Indeed, Singer acknowledges that he "would never deny that we are justified in using hold that in appropriate circumstances we are justified in using humans to achieve human goals (or the goal of assisting animals)." [55] Singer claims not to be "the kind of moral absolutist who holds that "no animal experimentation is ever of use to humans" or that "all animal experimentation involves suffering." [56]
Similarly, Singer's theory does not necessarily prescribe the abolition of animal agriculture. Singer argues that many nonhumans, and this class apparently includes food animals, are incapable of "having desires for the future" or a "continuous mental existence." [57] These cognitive characteristics assume "an understanding of what it is used for food have such an understanding. [58] This supposed lack of future desire or continuous mental existence is generally irrelevant when the issue involves pain or suffering alone. Also, Singer appears to contradict himself on this point and allows for individual capacities to affect assessments of pain and suffering.
Singer believes that these characteristics become relevant, however, when the issue involves killing an animal in a painless or relatively painless manner. He expresses "doubts" on the issue, but concludes that "it is not easy to explain why the loss to the animal killed is not, from an impartial point of view, made good by the creation of a new animal who will lead an equally pleasant life." [59]
Singer maintains that it may be morally justified to continue "to eat free-range animals (of a species incapable of having desires for the future), who have a pleasant existence in a social group suited to their behavioral needs, and are then killed quickly and without pain." [60] Singer states that he "can respect conscientious people who take care to eat only meat that comes from such animals." [61] Regan unambiguously rejects any eating of animal flesh as violative of animal rights -- even if the animals are raised and slaughtered in a "humane" manner. [62]
Moreover, Singer does not regard the abolition of animal exploitation, or the achievement of animal rights, even as a long-term goal of his theory. [63] Rather, Singer holds that the appropriate long-term goal of the animal movement should be equal consideration for animal interests. Put another way, Singer's goal is to ensure that speciesist considerations do not adversely affect the balance of human and animal interests. [64] Like the new welfarists, Singer assumes that there is some sort of causal relationship between incremental welfarist measures and the achievement of equal consideration for animal interests. For example, he suggests that a boycott of factory-farmed meat may eventually lead to the elimination of consumption of meat products altogether. [65]
Regan's rights theory, on the other hand, may be understood as a rejection of utilitarianism, all versions of which share the common notion that questions of right and wrong can be determined by aggregating the consequences of acts (act-utilitarianism), or the consequences of following general rules (rule-utilitarianism). The utilitarian pursues the course that maximizes that which she deems has intrinsic value -- pleasure, happiness, preference satisfaction, and the like. Regan rejects all forms of utilitarianism for many reasons. The most salient of these is his view that it is morally wrong to regard individuals as nothing more than receptacles for intrinsic value that lack any value of their own. [66] The utilitarian does not regard the individual as intrinsically valuable; instead, only some quality, such as pleasure, preference satisfaction, or knowledge, has intrinsic value. [67] The value of the individual is measured by the individual's ability to provide or contribute to positive aggregate results; the individual is merely a means to an end. [68]
Regan rejects these notions that individuals do not have value in and of themselves and that human value is dependent on possessing or generating some quality thought to be intrinsically valuable by the utilitarian. [69] Rather, he argues that individuals have inherent value and that it is inappropriate to treat individuals solely as means to the end of maximizing that which is regarded as intrinsically valuable. [70]
The essence of Regan's rights argument begins with his introduction of the postulate of equal inherent value. [71] In a sense, this notion is an alternative to both the utilitarian theory of intrinsic value and the perfectionist view of value. [72] According to the former, the value of individuals can be determined by totaling the intrinsic values of their experiences; according to the latter, individuals have value but the level of value differs from person to person depending on certain favored characteristics possessed by the particular person. [73] Inherent value theory holds that the individual has a distinct moral value separate from any intrinsic value. Inherent value is held equally among all individuals, in part because of the difficulty of formulating criteria for differential amounts of value. [74]
The attribution of equal inherent value to both moral agents and relevantly similar moral patients is required because both agents and patients are subjects-of-a-life. Both agents and patients are conscious, possess a complex awareness and a psychophysical identity over time. [75] Agents and patients may be banned or benefited and have a welfare in that their experiential life fares well or ill for them, independent of the utility that they have for others or the interest that others have in them. [76]
In a sense, being a subject-of-a-life is a sufficient condition for having inherent value, but it is also a criterion that allows for the intelligible and nonarbitrary attribution of equal inherent value to agents and patients, including nonhuman animals. [77] Again, Regan stresses the absence of a nonarbitrary way to separate moral agents from moral patients, and that no way exists to differentiate human moral patients from nonhuman moral patients without relying on some form of species bias or speciesism. [78]
Regan introduces a moral principle that takes equal inherent value into account: the respect principle. [79] The respect principle simply states that no individual with equal inherent value may be treated solely as a means to an end in order to maximize the aggregate of desirable consequences. [80] The postulate that moral agents and patients possess equal inherent value supports the normative notion that those with this value are entitled to be treated with respect for their status. [81] Moral agents and patients have a right to respectful treatment because their claims to justice are valid claims in light of the respect principle. [82]
The basic moral right to respectful treatment is universal: all relevantly similar individuals have it, and they have it equally. [83] Further, the right to respectful treatment is no stronger in the case of moral agents than in the case of moral patients. Both agents and patients have inherent value (based on the subject-of-a-life criterion) and both possess it equally. The right to respectful treatment prohibits treating those affected as mere "receptacles" of intrinsic values, as advocated by the utilitarians.
From the right to respectful treatment, another right can be derived: the prima facie right of the moral agent or patient not to be harmed. The harm principle can be derived from the respect principle in that all those who satisfy the subject-of-a-life criterion will have an experiential welfare that can be harmed or benefited, and will be regarded as having equal inherent value. As a prima facie matter, harming the interests of a subject-of-a-life shows disrespect for the inherent value of that moral agent or patient. [84]
Finally, Regan discusses the implications of the rights view for a range of activities in which nonhumans are exploited by humans and the position that Regan takes is uncompromising: he unambiguously and without equivocation condemns the use of animals for food, hunting, trapping, toxicity testing, education, testing, and research. [85] According to Regan, the rights view requires the abolition of all of these activities.
The reason for Regan's abolitionist position should be apparent in light of the foregoing analysis. Regan believes that humans and nonhumans are subjects-of-a-life that have equal inherent value. [86] The respect principle requires that no innocent individual be harmed unless it can be justified without assuming that the fundamental interests of human or nonhuman rightholders can be treated in an instrumental way. [87] The use of animals for food, sport, entertainment, or research all involve treating animals merely as means to ends and this constitutes a violation of the respect principle. Moreover, animal exploiters have no liberty to use animals because the liberty principle allows for harming innocent individuals only when their equal inherent value has been respected. By definition, this is not the case when animals are treated solely as means to ends.
Although Regan developed the rights-based argument, it is Singer who is regarded as the "founder" of the modern animal "rights" movement. [88] It is equally clear that on a substantive level, Singer's philosophy has permeated the movement to a significantly greater degree than Regan's rights view. Deborah Blum refers to Animal Liberation as the "bible of the current animal rights movement." [89] Jasper and Nelkin read Peter Singer's Animal Liberation, which since its publication in 1975 has become a bible for the movement. [90]
In discussing the emergence of "new animal rights groups," Sperling states that "[m]ost activists cited the publication of Singer's Animal Liberation as an important event that infused the emerging movement with a cohesive moral and philosophical perspective." [91] Lawrence Finsen and Susan Finsen discuss the controversy surrounding the origins of the animal rights movement, stating that "many place its beginning with the publication in the mid-1970s of Peter Singer's book Animal Liberation" [92] and that "many in the movement date their own awakening to animal rights issues in the mid-1970s, with the publication of Peter Singer's Animal Liberation." [93] Finsen and Finsen describe the emergence of the movement in the United States in the 1980s and comment that this interest was "not surprising, since a wave of interest in animal rights issues was sweeping the nation at the time, stimulated most clearly by the publication of Peter Singer's Animal Liberation in 1975 and a spate of related works...." [94] It is clear that Singer's work has deeply influenced many modern animal advocates. [95]
Singer has, to a considerable degree, encouraged this confusion by referring to his position as an animal rights theory. [96] As Garner has noted, Singer has "not helped matters by agreeing to the assertion of animal rights as 'handy political slogans.'" [97] Andrew Rowan observes the Animal Rights Movement for his book, Animal Liberation" because "Singer is a utilitarian and utilitarians argue strongly against the use of rights terminology in philosophy." [98]
Although "Singer has acknowledged the issue in his writings," he has "not disavowed the title because he sees the Animal Rights movement as a political and not a philosophical entity." [99] This is somewhat troubling because, as Garner has noted, it not only causes "confusion" within the movement about the distinction between animal rights and animal welfare, but because "the use of this rhetorical device by Singer arouses suspicion that he is an ideologue for animals rather than someone who sees the claims of animals emerging from a more or less neutral and general ethical theory." [100]
In sum, although Singer views equal consideration for animal interests, and not animal rights, as the long-term goal, his theory has become the animating philosophy of the modern animal "rights" movement. Singer's view is that the animal movement ought to pursue welfarist reform as a means of achieving this long-term goal. Although many animal advocates go further than Singer and see animal rights as the long-term goal, new welfarists accept Singer's view that we ought to try to achieve the desired long-term goal through the use of welfarist reforms that were supposedly rejected by the modern animal rights movement.
Newkirk uses a powerful image -- a thirsty cow awaiting slaughter -- and asks us to put ourselves in the position of determining whether or not to give the cow water. When confronted face to face with suffering of that kind, many people would feel an obligation to minimize the suffering of the cow even if they were avid meat eaters. Assume for present purposes that we are obligated to give water to the thirsty cow irrespective of our choice of welfare or rights theory. Even so, to say that we have an obligation to give the cow a drink of water in order to minimize her suffering does not in any way support the position that we ought to support animal welfare because it also seeks to minimize suffering.
Assume the following hypothetical: You are a guard working in a prison in which completely innocent people are being tortured and jailed by government security forces for no reason other than that they have political views that differ from those of the government. You disagree with the treatment of the prisoners but you feel that there is not much that you can do, and, indeed, you try your best to ensure that the prisoners under your guard are treated well. You avoid direct participation in any torture or physical mistreatment of the prisoners. One day, a prisoner who is obviously very thirsty asks for a drink of water. You feel that you have an obligation to minimize the suffering of the prisoner and you give the person a drink of water.
On another day, you decide that this institutionalized violation of basic human rights is not merely disagreeable to you, but that you want to seek the complete abolition of the torture and imprisonment of political prisoners. Your fellow guards try to talk you out of it. They argue that you can reduce the suffering of prisoners with whom you come in contact by treating them kindly. Although you certainly want to reduce the suffering of these unjustly imprisoned people, you believe that the suffering is caused by the unjust institution. You think that what is needed is the elimination of the unjust institution that causes the suffering and deprivation of other interests that together define the minimal conditions of what it means to not be treated exclusively as a means to an end -- in this case, the ends of the police state that imprisons people for their political speech. Indeed, you reply to your co-guards that even if the prisoners were not tortured, and even if they had relatively nice lives, their interests in liberty would be violated by their unjust imprisonment alone. Although not painful, this imprisonment still represents a serious deprivation of fundamental interests other than being free from suffering.
Now assume that you quit your job as a guard, form a human rights organization, and begin to seek legislation to rectify the situation. It seems that there are at least two options that are open to you to pursue your goal. First, you could pursue legislation that will require that all political prisoners receive a drink of water periodically, except when the warden of the prison makes a determination that compelling state security interests make it "necessary" to deprive prisoners of water. Then, after you secure that law, you can seek another law that will ensure that when a prisoner is tortured, all efforts will be made to see that the prisoner is tortured "humanely," and, specifically, that no prisoner shall be tortured in excess of two hours per day except when the warden deems it "necessary."
You lobby vigorously for a provision that requires any such "necessity" determination be approved by a committee of state security police. All committee members support the principle that prisoners need to be treated in this way in order to have a healthy state, but they all claim to endorse the view that prisoners ought not to be "unnecessarily" tortured for gratuitous purposes (i.e., the sadism of those who conduct the torture) that cannot be justified by the goal of state security.
Alternatively, you could pursue measures that are aimed directly at the institutionalized exploitation -- the practice of imprisoning, torturing, and killing people solely to benefit a corrupt regime. You might mount a campaign of public education aimed at persuading the population that such practices exist and should be abolished. Otherwise, you could organize constant but peaceful demonstrations by local residents at locations where political prisoners are incarcerated.
The difference between these two approaches is clear: In the first case, you focus exclusively on the interest of the prisoners in avoiding pain and suffering. This seemed a perfectly appropriate response while you were a guard. You generalize that legal and social change ought to do on the "macro" level what you have done in the prison on a "micro" level.
In the second case, you continue to be concerned about pain and suffering, but you approach the matter as one in which the pain and suffering is a direct result of institutionalized exploitation that treats people exclusively as means to the end of a corrupt political regime that seeks to justify the deprivation of all of these interests on the good consequences (public order, suppression of "radical" ideas, etc.) that supposedly result from the imprisonment, torture, and killing of these people. Accordingly, you conclude that seeking only to "reduce" suffering as a way of eradicating the institution will probably be counterproductive.
When a guard is confronted with the thirsty prisoner, she is deciding an issue of morality on a "micro" level that concerns how to respond to humans or other beings confronted with their suffering -- especially when their suffering is the result of a socially sanctioned, institutionalized deprivation of all of that person's interests. What the guard then urges on a "macro" level of legal or social policy change is arguably a completely different matter. It is not the case that the decision to offer water to the prisoner requires that the guard try to secure laws to achieve that reduction of suffering on an institutional basis by, for example, providing a glass of water to each prisoner on the way to execution.
What these examples illustrate is that both animals and people have different sorts of interests. A political prisoner most certainly has an interest in avoiding pain and suffering but has other interests as well. For example, the prisoner has an interest in not being treated as a mere instrumentality and in not being part of the institutionalized exploitation that causes this suffering in the first place.
When a guard responds to the suffering of a prisoner, the guard recognizes and respects an interest in avoiding pain and suffering. But once the guard recognizes that a prisoner has an interest in eradicating an institution of injustice that is unjustly causing the suffering in the first place, then, in order to do something about the institution of exploitation, it would be necessary to secure the respect of these other interests. After all, even if the political prisoner was not tortured, or subjected to thirst and hunger -- that is, even if the interest in pain and suffering was respected completely -- the prisoner would still be a prisoner.
Newkirk recognizes that animals have an interest in not suffering, but she and other new welfarists do not recognize that other interests are at stake, or that the suffering they seek to reduce is part of the institutionalized exploitation that explicitly condones whatever level of suffering is required to fully exploit the animal property.
In what is the most comprehensive and balanced study to date of the American animal rights movement, Lawrence Finsen and Susan Finsen discuss the issues and campaigns that are the subject of most activity by animal advocates." [104] The authors conclude that progress has not been significant either in terms of the extent of animal exploitation or of the character of animal exploitation. [105] Finsen and Finsen note that century," and that intensive agriculture involves practices that would, in the past, have been regarded as cruel, but are now considered normal and accepted by the government, agricultural researchers, and the exploiting industries. [106] Moreover, they argue that the effects of campaigns on institutionalized exploiters have been minimal. [107]
Political theorist Robert Garner discusses both the British and American movements, concentrating on the former, which is acknowledged universally as more radical than the American movement. Garner argues that although animal advocates have experienced some successes, "much difficult to think of legislation improving the welfare of animals that has seriously damaged the interests of the animal users." [108] For example, Garner notes that there are many laws that pertain to farm animals, and "[i]n theory, given the regulations surrounding the slaughtering process, the suffering of farm animals in the last moments of their lives should be minimal." [109] Nevertheless, "[t]here have been many disturbing reports...that these regulations are welfare often takes second place to cost-cutting." [110] He concludes that "the animal protection movement has made relatively little progress in influencing decision makers." [111]
This is not to say that animal advocates -- whether they are rightists or welfarists -- have not raised public consciousness about the issue of the social treatment of animals. On the contrary, there has been a marked increase in awareness about the subject; but increased awareness has not yet translated into significant decreases in animal exploitation. For example, the intensive farming of animals used in agriculture developed after animal welfare has become deeply entrenched in moral thought. Yet Finsen and Finsen note that while there has been "some progress" [112] made in Europe, "there has been no meaningful improvement in the welfare of farm animals, at either the state or national level" in the United States. [113] They also observe that "there is evidence that Americans are reducing their consumption of meat, though the role of ethical considerations in these decisions is not altogether clear." [114] They do note, however, that apparently many people no longer eat veal for ethical reasons. [115]
Similarly, Finsen and Finsen caution that any improvement in the plight of animals used in experiments is unlikely because biomedical science, supported by powerful economic and political forces." [116] There have been many laws and regulations enacted, but there is nothing in the law that prohibits any experimentation no matter how much pain or suffering is caused to animals. Indeed, there are still psychological affection-deprivation studies, and trauma experiments that involve the burning of unanesthetized animals, despite the fact that these types of experiments fueled the emerging opposition to vivisection in the 1970s.
As I have argued elsewhere, the federal Animal Welfare Act, which provides the primary regulation of the use of animals in experiments, does little beyond regulating issues of animal husbandry. It explicitly provides no restriction of what can be done to animals, or how it can be done. [117] Garner, who is clearly sympathetic toward welfarist reforms, correctly observes that the aim of the federal Act "is not primarily to regulate the kind of procedures adopted but only the supply and care of animals destined for research institutions (purchase, transportation, housing, and handling)." [118]
Moreover, the types of animal experiments are getting more objectionable despite the "humane" ethic that should be militating against abuses. Not only do millions of animals continue to be used in laboratories, but genetic engineering and cross-species transplants present new and arguably worse threats to animals in terms of pain and suffering. Critics of biotechnology, such as Jeremy Rifkin, have argued that animals used in invasive experiments may experience pain and suffering for some period of time, which is usually a period shorter than the duration of the animal's entire life, whereas genetically engineered animals experience intense pain and suffering from the moment they first become conscious and until the time they die. [119]
In addition, there have always been serious criticisms of the enforcement of the laws and regulations concerning laboratory animals. Frequently targeted is the enforcement of the federal Animal Welfare Act by the United States Department of Agriculture ("USDA"), which enforces the AWA through its Animal and Plant Health Inspection Service ("APHIS"). Ironically, the most persuasive critiques of USDA/APHIS enforcement of the AWA come from the government itself.
In 1985, the General Accounting Office ("GAO") issued a report that found, among other things, that: (1) training and written guidance for USDA inspectors were insufficient; (2) the frequency of laboratory inspections was inadequate; (3) APHIS did not follow up on serious deficiencies in a satisfactory manner; and (4) inspection quality and reporting was uneven and inconsistent. [120] A 1986 study by the Office of Technology Assessment was also critical of USDA/APHIS enforcement of the AWA. [121]
In 1995, the USDA Office of the Inspector General issued a report, finding that: (1) "APHIS does not have the authority, under current legislation, to effectively enforce the requirements of the [AWA]"[;] (2) research facilities were obtaining animals from shelters without observing the requisite waiting period; (3) "APHIS could make more effective use of its existing enforcement powers"[;] and (4) APHIS was failing to monitor animal care committees properly." [122] The result was "insufficient assurance that the committees minimized pain and discomfort to research animals." [123] Conservative welfarist groups such as the Animal Welfare Institute ("AWI") [124] and the HSUS [125] have also criticized USDA/APHIS enforcement of the AWA as inadequate in many respects.
Not only have welfarist reforms not moved society closer to the abolition of violence toward animals, but animal exploiters often point to welfarist reforms to defend their activities and to seek public support for continued reform. Nowhere is this more apparent than in animal experimentation. Groups like the Foundation for Biomedical Research produce educational materials in which they assure the public that laws such as the federal Animal Welfare Act provide for "proper care of laboratory animals" [126] and set standards for "veterinary care and use of anesthetics or analgesics." [127]
Some success has been made in the area of product testing, but "the campaign to end animal testing of even the most frivolous products has not been won by animal advocates yet, despite the gains made." [128] Moreover, the connection between decreases in animal use in product testing and the efforts of animal advocates is unclear because the industries involved were themselves at least somewhat critical of animal testing before animal advocates focused on the area. [129]
These efforts are generally undertaken as efforts to influence consumers to use their purchasing power to avoid products that contain animal products or that have been tested on animals. Such efforts are undoubtedly important, but there are structural limits on this form of advocacy. As Garner correctly points out with respect to all products involving animal exploitation, "consumers are not usually given enough information on which to make an effective choice. Animal protection groups can, of course, seek to provide this information but have limited resources particularly when compared to the wealth of business concerns using animals."
Garner also notes that "some companies are making misleading claims by, for instance, marketing as 'cruelty-free', products where the ingredients, as opposed to the finished product, have been tested on animals." [130] Animal groups have sought to focus pressure on companies who test (as opposed to trying to persuade consumers not to purchase those items), but "[t]here are doubts, though, about whether the consumer strategy has any long-term worth without a parallel campaign for legislative change." [131]
In the area of furs, Finsen and Finsen state that the "anti-fur campaign is one campaign in which activists can claim to have made progress." [132] They acknowledge, however, that "[k]nowing with any degree of assurance to what extent a variety of potential causal factors was operative in the fur slump is enormously difficult." [133] Moreover, they observe that "at the same time that the [fur] market is very bad, the fur industry in the United States is also undergoing some changes that may have profound implications for the anti-fur movement." [134] Finsen and Finsen cite the widespread opening of foreign markets for fur, especially in Japan, and "even more ominous," they point to the increase in imported fur coats and the emergence of vertically-integrated companies, such as Jindo, a South Korean company, that manages all phases of the fur operation from ranching to retail selling. [135] In addition, cheaper furs made abroad, as well as excess supply in the United States, may create greater demand as prices inevitably fall.
Most Americans do not hunt and are opposed to recreational hunting, but animal advocates have failed to make any significant dent in this activity. Much of the public is still deluded by erroneous claims that hunting is necessary to thin herds "humanely" and is unaware that federal and state agencies manipulate habitats "in order to maintain the 'maximum sustainable yield' for the hunters." [136] Moreover, hunters have succeeded in getting Congress and many state legislatures to enact "hunter harassment" laws that have been upheld as constitutional and that have the practical effect of chilling the speech of anti-hunting animal advocates. Finally, animals continue to be used for such things as pigeon shoots, rooster pulls, pig wrestling, mule diving, donkey basketball, captive-animal shoots, and motion pictures." [137]
Any attempt to "reform" animal exploitation must confront the property status of animals. Animal welfare laws require that we balance the interests of humans and nonhumans in order to determine whether particular treatment is "humane" or whether suffering is "necessary." The problem is that this balancing structure serves to obscure an important normative consideration that renders empty any such attempt to balance human and animal interests. Under the law, animals are things; they are regarded as property.
The legal systems of most western nations are dualistic and contain two primary types of entities: persons and property. Most legal scholars claim that legal relations can exist only between persons and that property cannot have rights. For example, according to Jeremy Waldron, property "cannot have rights or duties or be bound by or recognize rules." [138]
The class of "persons" is not limited to human beings; corporations and other non-natural entities are regarded under the law as "persons" for purposes of owning property and carrying out various activities. Property owners are entitled under laws of property to convey or to sell their animals, consume or kill them, use them as collateral, obtain their natural dividends, and exclude others from interfering with their exercise of dominion or control over their animals. Of course, this is not to say that the law cannot and does not restrict the use of animal property. Indeed, the law regulates the use of virtually all types of property, including animal property. Whether those restrictions have the actual or the intended result of providing protection for animals is another question and is discussed below. In any event, as far as the law is concerned, animals are property; legally regarded only as means to the ends of persons.
When humans seek to exploit animals for food, science, entertainment, clothing, or any other purpose, there is an obvious conflict between the interests of the animals and the interests of the humans who seek to exploit those animals. The law, which embodies a welfarist approach, requires that we balance the human and animal interests in order to determine which interest is more important. But this supposed balancing process prescribed by animal welfare theory is defective because it requires that we balance completely dissimilar normative entities.
Human interests are protected by rights in general and by the right to own property in particular. Animal have no legal rights, and are regarded as the property of humans. As far as the law is concerned, it is as if we were resolving a conflict between a person and her shoe. The winner of the dispute is predetermined by the way in which the conflicting parties are characterized under the law.
When we balance animal interests against human interests, the animal interest virtually never prevails precisely because of this "hybrid" system that requires that we juxtapose the interests of a rightholder with that of a nonrightholder. The latter is also the object of the rightholder's exercise of her property rights. As property, animals are chattels, just as slaves once were. And, just as in the case of human slaves, virtually any interest possessed by animals can be "sacrificed" or traded away as long as the human benefit is sufficient.
Numerous laws prohibit "unnecessary" suffering, or require that we treat animals "humanely," but humans are nevertheless allowed to use animals not only for experiments or as food, but for pigeon shoots, rodeos, donkey basketball, carriage rides in the middle of a congested city, or as exhibits in zoos. All of these uses of animals are "unnecessary."
Indeed, very few health care professionals still maintain that animal products are "necessary" for a healthy diet. An increasing number of such professionals claim that the consumption by humans of animal products presents serious health risks. Nevertheless, animal agriculture, which accounts for the largest institutionalized use of animals, and other activities, which account for fewer animals but nevertheless result in the imposition on animals of hideous pain and suffering, are permitted under the very laws that prohibit the infliction of "unnecessary" suffering and require the "humane" treatment of animals.
Legal standards that concern the "humane" treatment of animals, or the prevention of "unnecessary" pain, assume that the human hegemony over animals is legitimate in the first instance, and that the only issue is how this power is going to be exercised. The law assumes that animals are "things," and that "things" exist primarily to satisfy the needs and wants of persons. The only question is whether, and under what circumstances, the law will interfere with property use in light of the importance of property as a social institution, and the belief, which is very strong in most western legal systems, that the owners of property should be left alone to the furthest extent possible to determine the uses to which their property is put. The result is that -- despite the almost universally accepted moral maxim that any "unnecessary" animal suffering ought to be prohibited -- the balancing system prescribed by animal welfare laws ensures that virtually any use of animals is deemed to be "necessary" irrespective of the trivial nature of the human interest involved or the serious nature of the animal interest that will be "sacrificed."
Under such a scenario, notions like "humane" treatment, or "unnecessary" suffering, are not interpreted by reference to some moral ideal, but instead, are usually limited to what will best facilitate the exploitation of animal property. For example, scientists have on numerous occasions conducted experiments in which they subject conscious, unanesthetized animals to intense degrees of heat, supposedly in order to learn about burns. Indeed, I have a video that I show to law students that depicts an actual federally-funded experiment at a prestigious institution in which experimenters burn a large portion of the body of a conscious, unanesthetized pig in order to study the effects on the pig's subsequent eating habits. This is not considered "cruel" or "unnecessary" because it facilitates an institutionalized form of exploitation that is considered legitimate.
The question of whether the conduct is "necessary" is not decided by reference to some moral ideal, but with respect to its character as facilitating a form of exploitation that, normatively, has already been deemed to be legitimate. If, however, a nonscientist performs the exact same act, the act may be punished (with a relatively minor sanction under the most punitive scenario) as "cruel." This is not because the actions in the two cases are different -- indeed, there is no difference in the quality of treatment between the cases -- but because the action by the nonscientist does not facilitate the exploitation of the animal for "legitimate" institutionalized use. The only difference between the two situations is that in the first instance, the people who exploit animals (who are in most cases also the owners of those animals) determine that there are benefits to that animal use and the law regards that determination as acceptable.
If "cruelty" or the "necessity" of pain, suffering or death are determined not by whether the conduct violates some abstract standard, but by whether the owners of animals think that there are benefits that will come from such use, then, unless the property owners are not acting rationally in that they have failed to maximize the value of their animal property, the owners will in all cases think that their conduct is justified. It is their property, and they are using their property in the most cost-effective way in order to maximize its value.
Virtually no animal rights advocate urges the immediate abolition of institutionalized animal exploitation as a realistic goal. The exploitation of nonhumans is deeply ingrained in our culture, and our economy is heavily dependent on animal exploitation with animal agriculture being the largest national industry. Some animal advocates argue that the rights position should focus more on educating the public on the need to abolish the exploitation of animals than on pursuing legislative or judicial change in light of the property status of animals. But none advocates immediate abolition as any sort of goal. Incremental change is inevitable. Based on the structural defects of animal welfare, there are probably some compelling reasons for an animal rights advocate to spend her limited time and resources more on incremental change in the form of education, protest, and economic boycotts, and less on any sort of judicial or legislative change.
The primary reason is that judicial or legislative change sought by formal "campaigns" requires some sort of "insider" status. According to Garner, once an animal advocacy group decides to pursue activity other than public education, or, more precisely, once the group decides that it wants to have an effect on legislation or regulatory policy, it becomes necessary to decide whether to seek "insider" status in order to "achieve access to government" and "to influence policy makers." [141] Garner states that it "is easy to see why insider status is valued so highly. Access to government gives groups an opportunity to influence policy development at the formulation stage, thereby avoiding the difficult and often fruitless task of reacting against government proposals" which "are unlikely to change fundamentally" once they are formulated." [142] Garner recognizes that this "insider" status may be used to marginalize animal advocates through, for example, the creation of government advisory bodies that do little if anything but give the mistaken impression that animal concerns are being taken seriously. Nevertheless, he holds to the view that "insider status can allow pressure groups to have a significant input into the formulation of public policy. This insider status, however, is largely dependent upon a group being perceived by government as moderate and respectable." [143] Garner observes that although moderation and respectability are relative terms, "it is clear that the radical demands of the 'rights' faction of the animal protection movement are not regarded as acceptable enough" to give rights advocates "insider" status." [144] Garner argues that "insider" status is necessary for animal advocates to be effective, yet states explicitly throughout his book that despite the fact that moderate animal welfarists have enjoyed "insider" status, "the animal protection movement has made relatively little progress in influence decision makers." [145]
Garner assumes that "insider" status is desirable although he that all forms of insider dealings with the government are valuable;" [146] he recognizes that groups may be compromised seriously by advantages in the compromise approach." [147] The two primary examples of such advantages that Garner sees are "improvements in the way animals are treated...in the short term" and the possibility that there would be "fewer and weaker animal protection measures" in the absence of such compromise." [148] Indeed, Garner dismisses the notion that anyone would not want to achieve access to government even if they will not admit as much." [149] He remarks that "[s]ome groups might want to be outsiders, as no doubt some motorists might want to drive a ten-year-old car." [150]
But whether or not to pursue "insider" status, as Garner understands that notion, is at least one of the issues that needs further consideration: should the advocate of animal rights seek "insider" status when, as Garner acknowledges, such status comes only when the animal rights advocate is willing to be "moderate" in demand and "respectable" in presentation? It is, of course, not particularly difficult to understand why "insider" status is particularly problematic when considered in the context of animal rights theory. "Insider" status requires negotiation and compromise with those on the inside of government in the legislative and executive branches. Again, no one seriously doubts that one of government's primary functions, especially in a capitalistic economy, is to protect property rights. And animals are a most important species of property. It is very unlikely that any society with very strong property notions [151] can ever afford to compromise property rights for solely or primarily moral concerns.
There is a fundamental political difference between the rights position and the welfare position. The rights position is essentially an outsider position; it is the position of social protest that challenges basic social institutions that have facilitated the exploitation of nonhumans. Animal welfare does not require fundamental changes in industries that exploit animals, while the ethic of animal rights clearly does. Rights advocates are trying to change -- and in many cases ultimately to completely end -- the operation of institutionalized animal exploiters. The welfarist is an insider who seeks to influence the system from the inside as one of the participants in the system. When Garner makes the observation that those who accept the status of being outsiders are like those who claim to be content to drive ten-year-old automobiles, he fails to understand that for at least some people, a choice about fundamental moral issues is different from a decision about automobiles.
In any event, this inquiry raises a difficult conceptual question: Assuming that the animal rights advocate wants to support incremental change in the form of legislation or other legal changes, can she do so consistently with the acceptance of rights theory, which requires the abolition of institutionalized exploitation? In an earlier work, this author phrased the question as whether, short of abolishing the status of animals as property, we can have a "pluralistic system that characterizes animals as property but recognizes rights-type concepts on some level." [152]
We cannot meaningfully speak of legal rights for animals as long as animals are regarded as property. As long as animals are regarded as property, then their basic rights, or those rights that are a prerequisite for the enjoyment of other, nonbasic rights, can be sacrificed as long as some socially recognized "benefit" is found to exist." [153] As long as we can kill animals for food, or use them in experiments, or imprison them for their entire lives in cages so that we can be amused at zoos, or maim them for our amusement in rodeos, or shoot them for fun at yearly pigeon shoots, we are using "rights" "in some merely legalistic or otherwise abstract sense compatible with being unable to make any use of the substance of that right." [154] Basic rights are a prerequisite to the enjoyment of nonbasic rights, and the possession of nonbasic rights in the absence of basic rights is meaningless.
Critics will respond that every movement achieves rights incrementally. For example, Henry Spira "notes that in social movements, progress is made incrementally, through continual reform. '[He states] [i]f you push for all or nothing, what you get is nothing.'" [155] Spira attempts to compare incremental progress made in other social movements to incremental progress made toward the abolition of animal exploitation. This attempt must fail for the reason that no other situation, other than slavery, is comparable with respect to the baseline protection afforded to animals. When we talk about incremental progress made in other social movements, we are talking about rightholders who seek greater rights protection.
For example, improved labor conditions for factory workers operate in the context of actors who already have basic rights that are sought to be extended. Put simply, we do not just arbitrarily kill and eat factory workers. Although interests may be balanced, some interests, such as the right of the worker not to be arbitrarily killed by the boss, cannot be traded away because those interests simply are not on the table. However, because animal interests are treated in a completely instrumental manner that sacrifices all animal interests if animal owners decide that there is a benefit in doing so, the animal will virtually always receive the short end of the stick. Moreover, we will always presume that property owners are the best judge of whether a particular use of their property, including their animal property, will be a "benefit" to them.
Furthermore, once we have persons who are at least holders of basic rights, it makes sense to talk about making incremental reforms in rights. Yet, the basic right not to be treated as property is a right that does not and cannot admit of degrees at least in this sense. Indeed, the issue is not whether we can achieve animal rights incrementally, but whether we can incrementally eradicate the property status of animals. In a sense, we are really only talking about one right -- the right not to be treated as property. [156] A recognition of the validity of this single right would compel the conclusion that institutionalized animal exploitation violates principles of justice. More importantly, this violation is tolerated only as long as animals are classified as property, which gives humans license to ignore the basic similarities between humans and nonhumans relevant for attribution of the status of being a subject-of-a-life.
Although rights theory does not really concern the particular rights that animals have, it asks whether animals should be in the class of rightholders. Answering this question in the affirmative does not commit the rights advocate to particular animal rights beyond the right to respectful treatment. This precludes institutionalized exploitation, but does not address much beyond that basic right not to be regarded as property, or in Regan's language, not to be treated exclusively as a means to an end.
Institutionalized animal exploitation is structurally similar to American slavery. Slaves were regarded as the property of their masters, but for purposes of responsibility under criminal law, slaves were regarded as persons. Although there were supposedly laws that protected slaves from particular types of treatment, such as "excessive" beatings or "unnecessary" punishment, the law usually assumed that the master was the best judge of how slave property ought to be used and that the master would act in a self-interested way with respect to that property. Indeed, Virginia had a law that a master who killed a slave as part of disciplining the slave could not have been said to have acted with malice (a prerequisite for a murder conviction) because of a presumption that the master would not intentionally destroy the master's own property. [157]
Whether slaves should have rights is an entirely different question from what rights slaves ought to have. To say that slavery should be abolished is nothing more or less than to maintain that slaves should be removed from the class of legal entities known as things and placed instead in the class of legal entities known as persons. To do so would mean that people who were formerly regarded as things that could not have nonbasic rights can now have these rights; however, it does not specify the content of such rights. Society may agree that slavery should be abolished, but may disagree that former slaves should be given nonbasic rights such as a right to a certain level of material wealth. For these reasons, we cannot really talk about animals' rights, as long as animals are regarded as property.
The rationale that property cannot have rights follows from what it is to be property. The dualistic nature of our legal system recognizes that there are persons and property. Property is defined as that which cannot have relations with other property or with persons. We can be responsible for property, but not to property for our acts. In the former case, a person may be responsible for the use to which my property is put, but her duties are owed to other persons, and not to the property. As a matter of law, property is regarded as constituting means to ends selected by human owners and subject to some degree of state regulation.
To the extent that the law recognizes that animals have interests, those interests are recognized only to the extent that they facilitate the use of the animal as property. The status of animals as property accounts in part for the reason why courts have struggled with the status of anticruelty laws, claiming that, for the most part, the duty not to be cruel is usually thought to be owed to other persons. Similarly, courts interpreted laws prohibiting certain types of slave punishment as protecting "public decency" and not any interests of the slave.
To be property means that the "thing" possesses no interests of its own; to the extent that the law recognizes that the "thing" has interests, these interests may be sacrificed if the property owner thinks it to be in her interest, subject only to any legal regulation of the property, which generally protects the owner's interests and seeks to ensure that the value of property is not diminished. Any "rights" that we presently recognize do not constitute any concession that animals have interests that cannot be traded, as is the case when we are discussing human rights.
As indicated at the outset of this Article, the idea of a right is to recognize an interest that cannot be sacrificed (at least not easily) even though it might benefit others to sacrifice the interest protected by the right. But as long as animals are property, by definition, they have no interests that are protected in this way. They have no relationship with persons that entitles them to protection from those persons at all costs because, as property, animals exist as means to the ends of human owners -- and nothing more.
Despite the argument that it does not make sense to talk about animals having rights in a society in which they are regarded as property, my reservation is related to the notion that under the animal welfare paradigm, which currently regulates the human/animal relationship, any animal interests that are recognized will almost always be subject to being sacrificed in the face of even trivial human interests. The only way that this will change is if the characterization of animals as property changes, and moves closer to personhood -- which is another way of saying that animals cannot have any nonbasic rights until they get the basic right of not being regarded exclusively as means to human ends.
The question then becomes whether there is a way that this right -- the right not to be regarded as property -- the right to be a holder of other rights -- can be achieved incrementally in a manner that is consistent with animal rights theory. This issue can be rephrased as whether there is any way to incrementally change the legal status of animals that is consistent with rights theory. As argued above, one thing that the rights advocate cannot do is use welfare reforms to achieve this goal incrementally because such reforms, which necessarily assume the legitimacy of the property status of animals, only reinforce the property characterization, and cannot create rights in animals.
The first aspect is that rights theory seeks the abolition of the institutionalized exploitation of animal subjects-of-a-life, which involves treating animals exclusively as means to ends. In legal terms, rights theory seeks to eradicate the property status of nonhumans. This aspect of rights theory reflects the idea that animals have interests other than merely being protected from pain and suffering.
The second aspect is that, in seeking this long-term goal, the rights advocate cannot endorse the sacrifice of fundamental interests of some animals today in the hope that some animals tomorrow will no longer be treated as the property of human owners. All subjects-of-a-life have equal inherent value, and it violates the respect principle to ignore the inherent value of any such being because some other beings would "benefit" from ignoring that value.
These aspects of rights theory are central because they incorporate key notions of rights theory; many more have obviously been omitted, including numerous complicated ones. The point is to see what criteria can be derived from these basic notions. Future scholarship will hopefully further develop the relationship between animal rights theory and practice. In addition, I think that these aspects of rights theory are relatively uncontroversial -- not, of course, in any absolute sense, but rather that anyone who identified herself as an advocate of animal rights would probably agree that these are key aspects of rights theory, and agree with the content of these assertions as well. That is, if a person considers herself an animal rights advocate, she probably agrees with the statement of this long-term goal, and the limitation placed on getting to that goal -- by whatever means.
An earlier part argued that laws requiring that people treat animals "humanely" cannot, as Rowan and others have argued, create "rights" for animals precisely because nothing is prohibited by such laws except for the completely gratuitous waste of animals. There is nothing that the animal (or the representative of the animal) can claim because no one is under any obligation to refrain from any particular action. There are laws that prohibit the "unnecessary" infliction of suffering, but such laws are useless if, as is the case, no one is under a duty not to do any particular act. Indeed, virtually all acts involving and upon animals are considered as "necessary" as long as there is some identifiable human benefit. Without such duties, there can be no rights of any kind.
Although prohibitions are, in this sense, central to all claim rights, they are particularly central in the case of animal rights. The theory of animal rights says nothing about what particular rights animals have other than the right not to be treated as the property of humans, which is what makes their institutionalized exploitation possible in the first place.
To the extent that we try to cast animal rights theory in terms of claims, the animal claim will not be a claim to do something, as is the case where most human claim rights are concerned, but will be a claim against instrumental treatment. In this sense, the claim right involves a prohibition not only in the sense that others are prohibited from interfering with the interest protected by the right, but also in the case of animal rights. The only interest at issue is the animal's interest in not being treated exclusively as a means to an end; the interest is not a claim involving making contracts (which involves the creation of other legal interests) or a claim involving the relationship of animals as rightholders to other property. The claim is one that the animal not be subjected to instrumental treatment, and that aspect of the relevant claim right further accentuates the notion that a right involves some reasonably specifiable conduct that is prohibited because if it were not, the claim right would be compromised.
Thus the first criterion for any incremental change, beyond the incremental education of the public about the need to abolish institutionalized animal exploitation, is that it must prohibit some reasonably identifiable behavior. This prohibition must also correlate with the ability of the animal to claim (through a representative) the protection of the right.
The requirement that there be a prohibition, and not merely a regulation that requires "humane" treatment, is sometimes phrased as requiring the "abolition" of a particular practice. Although this is a correct description of the matter, it can cause confusion by equating the abolition of institutionalized animal exploitation with incremental measures that, it is hoped, will lead to that abolition. On the first level of moral theory, animal rights theory is clearly "abolitionist" in that its long-term goal is the complete eradication of institutionalized animal exploitation. What we are examining now is whether there are adequate criteria that can be used to identify incremental means to the long-term goal.
To say that the incremental means must themselves be "abolitionist" is correct if the definition includes prohibitions against reasonably identifiable conduct which, if engaged in, would constitute a failure to respect a particular animal interest. But these incremental means are by definition not "abolitionist" in the sense that no one incremental prohibition will effect the long-term goal of ending animal slavery. In order to avoid confusion, it is better to reserve the use of "abolition" for the long-term goal of rights theory, and "prohibition" as one criterion of incremental measures that seek to realize that long-term goal.
The requirement of a prohibition is a start, but only a start, because standing alone, the requirement is arguably incomplete. For example, there are legal regulations that require that animals used in experiments be provided with water regularly. [160] This law would not have the same problem as one that required that animals be treated "humanely," because the latter does not really require any particular human conduct at all; therefore, we cannot say that the law prohibits anything. But a law that requires specifically that animals be watered is different because it does prescribe a standard in that it prescribes that a particular interest of the animal must be observed. The property owner has a duty to give water to the animals. And precisely because the standard is correlative with a duty, such a law could be phrased as a prohibition -- that it is prohibited not to give water to animals used in experiments.
Although water may be withheld if the animal is being used in a dehydration experiment, that limitation is sufficiently definite to delineate a very clear set of instances to which the duty would apply. Thus it would be permissible to say that a prohibition is involved in all those cases in which the animal was not being used for purposes that specifically required dehydration.
The requirement of a prohibition has the advantage of ruling out from the class of incremental measures any rule that does not establish a standard of behavior with a correlative duty that has behavioral content, i.e., that the property owner is prohibited from engaging in some conduct that the property owner is under a duty not to do. This exclusion would involve all welfarist laws and regulations that require only that the property owner treat the animal property "humanely." The disadvantage of the prohibition requirement as the single criterion for identifying incremental measures is that any law or regulation that does establish a standard with a correlative duty could be regarded as a prohibition even though the standard was agreed to be (even by welfarists) nothing more than a welfarist reform. So, although the requirement of a prohibition is useful, and allows us to exclude some welfarist reform (the rules that prescribe "humane" treatment and proscribe "unnecessary" suffering), it is not yet sufficient.
Another sense in which the prohibition requirement, standing alone, is problematic is that laws prohibiting only "inhumane" behavior (without more) do not constitute true prohibitions. I have argued that as a matter of legal process, these laws will be interpreted only to require that level of animal care that will facilitate the exploitation of the animal property of the owner without allowing the property owner to inflict gratuitous harm on the animal that will only decrease overall social wealth. So, although these laws do not prohibit any particular behavior, they will be interpreted to provide, for example, that unless the owner has a good reason, the owner has a duty to provide the animal with water in order to keep the animal alive.
This argument suggests that all welfarist laws, including those that require that animals be treated "humanely" or not be used in "unnecessary" ways and do not prescribe duties that proscribe certain conduct, nevertheless constitute prohibitions. Even if the standard that requires water is a standard that would have been adopted in the absence of a specific requirement, and would, at least in theory, be adopted even in the absence of a rule requiring "humane" treatment, there are important differences between the general and the specific standard. There are costs associated with interpreting the general standard that may result in greater uncertainty that is ameliorated by the specific standard.
There are many reasons why property owners act in ostensibly irrational ways and do not maximize the value of their property; not being in possession of all relevant information is one reason that is particularly important in the context of animal property where relatively little is known about animal "welfare" (understood as that which makes animals good "producers" for their human owners). Although the indefinite standard may, in theory, lead to the same result (a definite standard), that process of evolution is fraught with many uncertainties that, at least on the level of practical reasoning, support a distinction from the prohibition. Moreover, there may be cases in which welfarists propose a reform that provides a standard that is not cost-justified. [161] In sum, the requirement of a prohibition is useful in excluding some incremental means, but this is only the beginning of the inquiry.
Proposal 1: Reduce the number of hens confined in a battery cage (usually floor space is a twelve inch square) from four hens to three hens.
Proposal 2: Criminalize the use of animals in drug addiction experiments.
These proposals cannot be distinguished using the first criterion alone, because, for the reasons stated above, both of these can be considered to involve prohibitions. Although Proposal 2 accords more with the notion of a prohibition, Proposal 1 can be conceptualized as a prohibition on keeping four chickens in a cage.
This is not to say, however, that there are no distinctions between Proposal 1 and Proposal 2. With respect to the criminalization of the use of animals in a certain type of experiment, a particular activity that is constitutive of the general practice of vivisection has been stopped. At any given time, vivisection as an institution for the exploitation of nonhumans involves the use of animals for a number of discrete and identifiable purposes, such as experiments for particular purposes, testing or education. This is, however, not the only way in which the institution of vivisection may be understood in terms of its constitutive activities. For example, vivisection may also be broken down from the standpoint of the animals used; that is, vivisection may be considered as the use of nonhuman primates used for all research, testing, and educational purposes, dogs used for all such purposes, etc. Or it may be understood as all animals of a particular species used for particular purposes.
The problem is that at some point, the description of the constitutive activities of vivisection will become so detailed that the concept of constitutive activity will cease to have any usefulness apart from providing a list that contains a statement of every animal used in every procedure for all research, testing or educational purposes. For example, an argument that one of the constitutive parts of the general practice of vivisection was the use of this particular rabbit in this particular experiment, would, of course, be correct strictly speaking, but then the very same experiment done with five different rabbits would constitute five different "activities." In this context (as in most others), we use words like "activity" to pertain more generally to a class of actions. This is not to say that the usage of the concept is governed in some determinate way; there will, of course, be close cases. But just because there are close cases does not mean that there is no difference between using "constitutive activity" to apply to the use of all animals in a particular type of research (Proposal 2) and using that concept to describe the use of a particular animal in a particular experiment. For example, if we are going to describe a set of events collectively as an "activity," it seems that the classification must be based on relevant similarities shared by those events. As an initial matter at least, it appears as though we can regard the activity described in Proposal 2 as a constitutive activity because it describes a significant group of events and collects them together based on the character and purpose of the use (i.e., drug addiction experiments).
The question then becomes whether, based on this analysis, there is a difference between Proposal 1 and Proposal 2. Assuming that the institution of exploitation at issue is animal agriculture (the analogue of vivisection as a general matter), the question is whether changing the number of hens in the cage from four to three constitutes a prohibition of a constitutive activity of the overall practice. This question asks whether we can regard having four hens in the cage as a different activity from having three hens in the cage. At some point, the constitutive activities of animal agriculture may become so specific as to be nothing more (or less) than a list of every animal that has been used in animal agriculture so that, in a given year, there are eight billion different constitutive activities because in the United States alone, we consume that number of animals annually. The hen example is not quite at that end of the spectrum, but it also seems to use a notion of constitutive activity that differs from that used in Proposal 2. If Proposal 1 read instead that we would keep the four hens in the cage but would make some other environmental adjustment, such as giving "treats" to the hens, [162] no one would say that we had effected a prohibition of a constitutive activity because keeping four hens in a cage with cookies is a different activity from keeping four hens in a cage without cookies. That does not mean that the two situations are the same; it means only that it tugs at our notions of what "constitutive activity" means when we try to apply it in the cookie example.
Applying this analysis, and recognizing that we are often dealing with matters of degree, it appears that although Proposal 1 can be said to contain a prohibition, it does not rise to the level of eradicating an activity that is constitutive of animal agriculture. It does represent a change in the character of the exploitation, but I think that it stretches the concept of "constitutive activity" to say that every such change (or this change) is anything more than just that -- a change, but not the cessation of something that might be called an activity. On the other hand, if "constitutive activity" has any meaning, it would appear as though Proposal 2, which classifies a group of events together based on the nature of the experiments (viz., all drug addiction experiments), and prohibits that class of events, does involve an "activity" that is "constitutive" of the overall offending institution.
This discussion indicates that whether something is a "constitutive activity" or not may depend on degree. For example, if Proposal 1 required that we take all four hens out of the battery cage entirely and place them in a small hen house that nevertheless afforded more movement, we might be inclined to say that the proposal involved abolishing an activity that was constitutive of animal agriculture, viz., the battery cage. Again, just because the difference between what is and what is not regarded as a "constitutive activity" may frequently be a matter of degree rather than of category does not obviate the usefulness of the concept as a tool to distinguish among certain states of affairs. It only means that sometimes it is difficult to apply the concept because we are in the gray area.
In sum, the second criterion -- that the prohibition be one that ends something that we can reasonably regard as a salient part of the institution of exploitation -- can help to distinguish further incremental change that reflects the rights philosophy, but, as in the case of the first criterion, the combination of these two criteria cannot do the job completely. There is uncertainty that occurs in harder cases about whether a prohibition really does involve a significant activity that is part of the exploitation, and there may very well be cases in which the prohibition is said to affect a constitutive activity but where the incremental change violates salient aspects of rights theory. For example, even if the elimination of the battery cage and the substitution of the small hen house constitute a prohibition of an activity (i.e., the use of the battery cage), that proposal implicates the problem that the change nevertheless continues to sanction the exploitation of the hens, albeit in a different form.
If the prohibition achieves a state of affairs that is consistent with the status, of animals as subjects-of-a-life, then that prohibition abolishes a constitutive activity of exploitation even if the prohibition explicitly sanctions some other form of exploitation. For example, if egg batteries are abolished, but hens, still regarded as property, are kept under circumstances that would be appropriate if their property status was abolished entirely (i.e., they have freedom of movement and are otherwise kept as they would be if they were no longer regarded as property), then, although the hens will continue to be exploited as property, the prohibition on battery cages and the substitution of the alternative system abolishes a constitutive activity of exploitation. This view will be considered further when discussing non-tradable interests and the substitution of types of exploitation.
To the extent that we seek the incremental eradication of the property status of animals, it is necessary that there is a corresponding recognition of the interests of animals in not being regarded as property, or, as Regan would say, in not being treated exclusively as a means to human ends. This concept follows from one of the two primary aspects of rights theory: that the goal of rights theory is to eradicate the property status of animals so that animals are no longer treated exclusively as means to ends. The only interests recognized by such a proposed incremental measure are those that are necessary in order to exploit animal property. These interests do not represent any movement (incremental or otherwise) toward eradicating the property status of animals; instead, they reinforce that exploitation.
To eradicate the property status of animals, there must be a recognition of an interest that is noninstitutional, or that is not simply an interest that ensures the animal is used "wisely" in a context of exploitation. It is only through recognition of extra or noninstitutional interests that incremental eradication of property status can be achieved; recognition of institutional interests, such as the interest of a turkey destined for slaughter in being fed, merely reinforces and supports the property status of animals. The test for identifying such an interest is simple in one sense but, like the second criterion, necessarily admits of degrees: if the interest imposes a significant cost or tax on the ownership of animal property under circumstances in which the cost is clearly not justified in light of the "benefit" to the property owner, then the interest recognized is extra or noninstitutional. The test is simple to apply because it requires merely that we identify what costs are imposed by the regulation of property ownership, and whether those costs will significantly exceed an- benefit that animal property owners derive.
An alternative way to think about this criterion is to limit the notion of interests to those interests that the animal would have if the animal were no longer regarded as property. This notion relates to the discussion in the preceding section concerning the identification of activities that are constitutive of exploiting institutions.
This is not to say that the right cannot be overridden by another right that we judge to be more important. For example, although the law guarantees the right of free speech, it also provides for a right of physical security through a number of criminal and civil laws. If X wishes to yell "fire" in a crowded theater when there is no fire and where there is no purpose served by X's act, other than his amusement at watching a stampede of frightened people, their right to be free from the physical harm of possibly being trampled will trump X's right of free speech. But we do not make this judgment based on the "benefit" to any of the parties. The judgment would not change even if it could be shown that X would benefit far more by being able to yell "fire."
Assume the following: (1) a rich friend tells Y that she will pay Y $5 million if Y yells "fire" in the theater; (2) Y reasonably believes that even if people are injured as a result of the joke and sue him, their injuries, quantified by what they would get if they sued for their injuries, would only amount to $1 million under a worse-case scenario. Y might be tempted to proceed with the prank if only civil liability were involved; if the only concern was that Y might get sued for civil damages, he might very well go ahead, pay the maximum of $1 million, and pocket the remaining $4 million. But Y would still be liable under the criminal law for causing these injuries and be subject to criminal punishment.
The reason for this is clear: the criminal law recognizes that people have some interests that should not be sacrificed even though someone else will benefit if those interests are sacrificed. When we evaluate rights for purposes of deciding conflicts between rights, we do not look at consequences solely or even primarily. Rather, we look to the interests protected by rights and the competing values involved. In the above example, free speech is recognized as important in part because we value diverse contributions to the marketplace of ideas. But yelling "fire" in a crowded theater when there is no fire does little to add valuable input to our common pool of ideas. As a result, it is relatively easy to rank the rights in this case; but no ranking has been done by reference to the aggregation of consequences.
To the extent that the law recognizes that animals have interests that exceed those interests identified above as institutional interests, those interests can, in light of the status of animals as property, be recognized for the most part only in so far as there is no socially recognized benefit to be gained from their exploitation. Once that benefit is identified, the interest is traded away to secure the human benefit.
If there is to be an incremental eradication of the property status of animals, then there must be a recognition that animals have interests that go beyond those interests that must be respected if we are to exploit animals efficiently. And, following the second salient assumption of animal rights theory, these non-institutional interests cannot be tradable just because the aggregation of consequences indicates that the trade is justified to secure the human "benefit." Indeed, animals are property precisely because animals have no interests (beyond those that must be observed if the animals are to serve their "purpose" as our property) that are safe from being balanced away as soon as some human "benefit" is identified.
In one sense, this criterion seeks to ensure that the incremental eradication of property status is indeed an incremental "assembly" of personhood status for nonhumans through the recognition of the inherent value of animals. At present, we do not recognize animals as having any value except for their value to us. For example, philosopher Joseph Raz claims that although animals may have some value apart from their instrumental use to people, animals cannot have inherent value because any value of the animal ultimately derives from the animal's contribution to the happiness and well-being of some human or humans, who do have inherent value. [165] Raz's views are representative of many people's views. The fourth criterion ensures that each incremental move provides for and protects some notion of the inherent value of animals.
In one sense, this criterion could be said to address the enforceability of protection for recognized interests. One could say that under slavery as practiced in the United States, there were some laws that seemed to recognize that slaves had interests other than ones directly related to keeping a slave alive and fit for whatever purpose the slave was intended. For the most part, however, these interests were ignored whenever they conflicted with the interests of the master whose property rights were held to outweigh the slave's interests. If animal interests are to be taken seriously, then, to the extent that the law regulates the use of animal property beyond what is necessary to exploit the animal property, that regulation must be, held as eliminating the property right to the extent necessary to protect the interest. Otherwise, the victory for animals will be illusory; as soon as the rights of human property owners are triggered, the animal interest will be ignored.
Accordingly, the interest of the animal must be seen explicitly as an interest that is to be protected as would a true "right" within the legal system. The interest would not be a "right" in the full sense in that since animals would not yet possess the basic right not to be regarded as property (they would still be used for food and in experiments), they would have nonbasic rights that could be said to be building blocks of the basic right not to be property. These nonbasic rights must, however, be treated as though they were rights in the sense that they will be regarded as protecting interests that are not subject to interest balancing.
To protect animal interests in this manner would require a very deliberate and intentional recognition of a type of legal norm that our legal system does not yet recognize: a norm that functions like a true right in that it recognizes an interest that cannot be balanced away, but that is held by a being who has not yet achieved the status of being a holder of the basic right not to be regarded exclusively as a means to an end. Indeed, every time we recognize such a right, we move away from treating the being exclusively as a means to human ends; the problem is that the being's most fundamental interests in not being eaten or used in experiments or kept in a zoo have not yet been recognized. These incremental measures may be seen, however, as recognizing pieces of the basic right not to be regarded as property. So, although these interests represent nonbasic rights in one sense (the animal does not yet by definition have the basic right of not being property), the interests are more properly regarded as "parts" of the basic right of animals not to be treated exclusively as means to human ends. Tom Regan calls this normative notion a "proto-right" because it functions like a right but runs to the benefit of a nonrightholder, properly speaking." [166] Regan's terminology is adopted here because it requires that we focus on the notion that this sort of norm is something different from a right and something very different from what now exists under legal welfarism.
In order to recognize that animals have such interests, it is necessary that these interests be understood as trumping the interests of property owners. And in order to be effective, it would be necessary for the legal system to recognize that it is animals who hold this interest, and not their owners or government agencies, such as the USDA, which protects only those animal interests that make animals property in the first place. It would be necessary to recognize that animals (or, more properly speaking, the guardians of animals) have standing to articulate these interests against property owners, which would functionally require that some sort of guardian be recognized. [167]
Because animals are regarded as property, and property is, by definition and several hundred years of accepted understanding, that which cannot have legal relations with persons or other property, courts have developed doctrines that preclude animals or their surrogates from articulating their interests in courts of law and before regulatory agencies. This exclusion is based on the supposed inability (in terms of the power of the court) to adjudicate claims made by property or those who purport to represent that property. So, if the extra- or non-institutional interests of animals are to be non-tradable, then those interests, which must be seen as recognizing "minitrumps" of the property rights of animal owners, must be protected by the legal system. This will require that animal interests have legal standing and that some human actor (and this could be the police) have standing to articulate those claims before the appropriate body. This is, of course, not a new idea. In Should Trees Have Standing? -- Toward Legal Rights for Natural Objects, Christopher Stone argued that the inherent value of nonhumans could be recognized and protected by guardians just as are the rights (basic rights and nonbasic rights) of children or the mentally disabled. [168]
The fifth criterion holds that it is inconsistent with rights theory to treat some animals exclusively as means to the ends of others, or as property, in order to secure some benefit that it is hoped will eventually secure a higher moral status for other animals. This is a serious problem for the new welfarist who purports to endorse the long-term goal of animal rights by using short-term welfarist reforms as a means to the end of abolition of institutionalized exploitation.
The new welfarist disregards the inherent value of some animals in order to secure a benefit for other animals. For example, the federal Animal Welfare Act provides that animals may be used in biomedical experiments as long as their use is "humane" and they are not forced to suffer "unnecessarily." The new welfarists, who supported the 1985 amendments to the Act, believe that the Act will itself reduce animal suffering, but more importantly, that laws like the Act are "stepping stones" to the future recognition and respect of animals other than the ones whose interests are now being ignored. This Article argued earlier that there is simply no way to determine whether laws like the Act actually reduce animal suffering, and that, given the structural defects of welfare theory generally, such laws will generally be held only to require that conduct that facilitates the use of the animal as property. Apart from the rather puzzling logic of how we get to a non-property status of animals by persistent reinforcement of the property paradigm, there is something objectionable on a theoretical level when a rights advocate explicitly endorses the property status of animals as a way of eradicating that status on an incremental basis.
The present point can be made in the context of the tradability of interests that were discussed in the preceding section two criteria. The third criterion specified that in order to effect an incremental eradication of the property status of animals, interests that are recognized must be interests that are extra- or non-institutional in the sense that they protect interests other than those, such as interests in food and water, that merely make the animal fit for the particular type of exploitation involved. The fourth criterion requires that these incremental interests, which will, by definition, fall short of protecting a basic right in not being property, nevertheless be respected as providing protection that cannot be compromised for consequential reasons alone. The fifth criterion requires that in securing proto-rights for animals, we cannot trade away or disavow the present moral status of animals as rightholders in the sense that their continued status as property is violative of their rights.
This fifth criterion is also related to, but distinct from, the second criterion that the prohibition serve to eradicate an activity that is constitutive of the overall institutionalized exploitation. As argued at that point, there are different ways of understanding the "parts" that make up the "whole" of vivisection; one can look at experiments as a group, species of animals used as a group, etc. An "activity" could be understood based on the use of particular animals, or the purpose of experiments, or the kinds of procedures used. But the fifth criterion serves to place even further limits on the second in that even if the prohibition stops a constitutive part of the institutionalized exploitation, it cannot do so at the expense of substituting alternative forms of exploitation. So, for example, a complete prohibition on the use of chimpanzees in certain procedures can reasonably be said to constitute the prohibition of a constitutive activity, but to the extent that the advocate urges or accepts that other animals, such as dogs, should be used instead, there is a conflict with rights theory because such a rule would secure the benefit by treating subjects-of-a-life who have equal inherent value differentially by using species to determine membership in the protected class. To put the matter another way, such a rule would violate the fundamental proscription against speciesism.
In order to understand more fully the point of this fifth criterion, consider the following example: animal advocates propose to lobby for a law the preamble of which explicitly recognizes that animals have moral interests and the current configuration of battery hens per cage disrespects those moral interests. The body of the law provides that in recognition of the interests that hens have, no more than two shall be placed in battery cages, and these cages shall be enlarged to provide 196 inches of floorspace rather than 144 inches. The egg industry objects to this arrangement vehemently as it is "unnecessary" to maximize the value of animal property and will, in fact, impose a very significant cost on the ownership of animal property in this context. The law provides that this interest must be protected irrespective of the economic consequences and contains penalties to ensure that the interests are not recognized subject to complete defeasance through a claim of human "benefit."
The traditional welfarist would undoubtedly support this measure because it will, in the welfarist's view, reduce animal suffering. The new welfarist, who seeks as a long-term goal the abolition of animal exploitation, will also undoubtedly support this, not only because it will supposedly reduce suffering, but because it is a "stepping stone" or "springboard" into abolition at some future time." [169] The new welfarist and the traditional welfarist have the same view -- that the measure will reduce suffering -- but the new welfarist, unlike the traditional welfarist, believes that because the measure will reduce suffering, it will act as an incremental measure on the road to the long-term goal.
The animal rights advocate first dismisses the view that avoiding pain and suffering are the only interests that animals (human or nonhuman) have. If pain and suffering were the only relevant moral interests, then what would prevent us from using small numbers of "undesirable" humans to eradicate large amounts of human pain and suffering? Obviously, although we all have strong interests in avoiding pain and suffering, we do limit the ways in which pain and suffering can be alleviated so as to respect other interests -- such as the rights of humans (and nonhumans) -- as well. Second, the rights advocate dismisses the new welfarist view, also articulated by Singer, that a measure that reduces pain and suffering will lead to incremental achievement of the long-term goal of equal consideration for equal interests (Singer) or the abolition of all institutionalized exploitation (Regan) simply because it supposedly reduces pain and suffering. The rights advocate knows that some measures that supposedly reduce pain and suffering will do nothing more than assure that animals receive protection that is consistent with their status as property, and that facilitates their use as particular types of property.
The rights advocate begins by asking whether the proposal contains a prohibition or a regulation, and concludes that the proposal prohibits keeping more than two hens in the cage. She is unclear as to whether, even if the proposal is a prohibition, it constitutes a prohibition of an activity that is constitutive of the overall form of exploitation. She errs in favor of regarding the measure as prohibiting a constitutive activity. She is clear, however, that the proposal provides for the recognition of an interest that is extra-institutional in that it provides for the recognition of an interest that is not tied to the property status of the hens. The proposal recognizes that the hens have inherent value beyond their status as property, which would justify only that level of regulation that facilitated animal use. Moreover, the proposal provides that these interests cannot be traded away and constitute proto-rights.
The problem with the proposal is that it is, on its face, not only consistent with the status of animals as property that, as a general matter, lacks inherent value, but does so in a way that explicitly trades away the basic right of the hens not to be property in favor of a recognition of moral status that falls short of recognition of the basic right, or the complete protection of some interest that the animal has in, for example, bodily movement. By agreeing to the two-hen arrangement, animal advocates are trying to achieve proto-rights while at the same time endorsing an alternative form of exploitation -- two hens in a cage -- that is supposedly more "humane."
In the present case, it seems reasonable to say that the interest involved is the interest that the hens have -- all of them -- in not being in the battery cage in the first place and in having freedom of movement that is appropriate to the species. To the extent that the proposal recognizes and respects that interest, then the prohibition arguably does not substitute another form of exploitation and is acceptable. That is, assume that a prohibition abolishes the battery cage entirely and replaces it with a rearing system that accommodates all of the hen's interests in freedom of movement and thereby fully recognizes the interest of the hen's bodily integrity. Such a state of affairs may be another way of saying that the prohibition ends a particular form of exploitation that has violated a particular non-institutional, non-tradable interest that we have now decided to respect. But this sort of substitution differs considerably from merely removing two of the hens from the cage in that although we have not yet abolished the institutionalized exploitation, the substitution eliminates the exploitation involved in the confinement system through a full recognition of the interest of the hens in their freedom of movement.
In any event, any substitution of exploitation raises serious questions for the rights advocate. If the incremental eradication of the property status of animals is going to be consistent with rights theory, it is important that proposed measures not substitute one form of exploitation for another, supposedly more "humane" form of exploitation. Oftentimes, the alternative form of exploitation will provide in general terms for "humane" treatment, which then feeds the whole matter right back through the mechanisms of legal welfarism which, as argued before, are structurally defective and systematically devalue animal interests. But even if the substitute form of exploitation is more definite (i.e., there shall be no more than two birds per cage), and even if the proposal recognizes that the animals have some inherent value that justifies the recognition of a non-institutional, non-tradable interest, that recognition comes at the expense of endorsing another form of exploitation that rests on the legitimacy of the status of animals as property. This sacrifices the moral right of the animal not to be property for a proto-right that is designed to effect the incremental eradication of property status. The substitution of exploitation raises issues of moral conflict with rights theory, and incoherence in light of the fundamental assumptions of that theory.
This discussion does serve, however, to demonstrate that as a practical matter, certain campaigns will be difficult for animal rights advocates to pursue if they agree with this fifth criterion. It seems that the rights advocate really has no choice but to condemn any form of substitute exploitation, unless that alternative arrangement completely eradicates an activity constitutive of animal exploitation through the full recognition of relevant animal interests. The animal advocate must not herself suggest an alternative, and must not agree to any alternative offered by the exploiter. To do either would involve the rights advocate sacrificing the basic right of animals not to be property in order to secure a less-than-basic proto-right that, while it does recognize and respect that animals have person-like interests that transcend their status as property, is achieved at the cost of reinforcing the notion that a "better" system of animal slavery is acceptable. These considerations would militate in favor of conducting the sort of campaign that may not succeed (at least initially), but that will have a potentially powerful effect on educating members of the public about animal exploitation. And in many respects, such education, whether sought directly in the classroom or as part of a militant campaign such as one that supports a law to demand the end of the egg battery and that urges no substitute form of exploitation (rather than a reactionary and conservative welfarist campaign to make the matters more "humane" for the hens) is probably the best thing that the animal rights advocate can do at this stage of history in any event. After all, we live in a society that tolerates the slaughter of 8,000 live pigeons every year on Labor Day at The Hegins Pigeon Shoot in Hegins, Pennsylvania -- just for the "fun" of the activity. Animals truly are treated exclusively as means to human ends, and anything that challenges this status is likely to better effect the long-term goal than reinforcing that property status through continued emphasis on avoiding pain and suffering -- as if that were the only value involved here.
The Article has argued that this view -- characterized as "new welfarism" assumes that animal welfare reforms work and that animal rights is incapable of providing a program for short-term incremental change. The property status of animals, however, ensures that welfarist reforms will generally only facilitate the efficient exploitation of animal property.
Finally, the Article has contended that rights theory, contrary to the position of the new welfarists, does prescribe a theory of incremental eradication of the property status of animals. Five criteria were offered to help identify measures that will effect the gradual reduction of this property status.
In another context, legal scholar Richard Delgado argues that whenever a social movement portends a paradigm shift, there is a rejection of any solution that pushes thought too far forward and threatens stability. The result is an embrace of "doomed, moderate approaches." [170] It is such an embrace that animal rights advocates must reject if they are to achieve justice for nonhumans.
This article is dedicated to Bill Kunstler, a friend and neighbor, who, through his example, taught us all so very much about justice.
** Professor of Law and Nicholas deB. Katzenbach Scholar of Law and Philosophy, Rutgers University School of Law--Newark. Professor Francione is also co-director of the Rutgers University Animal Rights Law Center.
1. See generally GARY L. FRANCIONE, ANIMALS, PROPERTY, AND THE LAW (1995) [hereinafter FRANCIONE, ANIMALS, PROPERTY AND THE LAW]; Gary L. Francione, Animals, Property and Legal Welfarism: "Unnecessary" Suffering and the "Humane" Treatment of Animals, 46 RUTGERS L. REV. 721 (1994) [hereinafter Francione, Animals, Property and Legal Welfarism]. Animal welfarists support laws which seek to ensure that animals used in experiments are not subjected to "unnecessary" suffering, and that animals used for food are slaughtered "humanely."
2. JAMES M. JASPER & DOROTHY NELKIN, THE ANIMAL RIGHTS CRUSADE 5 (1992).
3. Bernard E. Rollin, The Legal and Moral Bases of Animal Rights, in ETHICS AND ANIMALS 106, 106 (Harlan B. Miller & William H. Williams eds., 1983).
4. JASPER & NELKIN, supra note 2, at 5.
5. Id. at 9.
6. Id. at 5.
7. SUSAN SPERLING, ANIMAL LIBERATORS: RESEARCH AND MORALITY 2 (1988).
8. Id. at 28. According to Sperling, the modern rights position is conceptually related to the antivivisection movement of the nineteenth century in that both share a fear of increasing technological manipulation of the earth and all its inhabitants. Id.
9. ROBERT GARNER, ANIMALS, POLITICS AND MORALITY 49 (1993).
10. Id.
11. LAWRENCE FINSEN & SUSAN FINSEN, THE ANIMAL RIGHTS MOVEMENT IN AMERICA: FROM COMPASSION TO RESPECT 3 (1994).
12. Id.
13. AMERICAN MEDICAL ASSOCIATION, USE OF ANIMALS IN BIOMEDICAL RESEARCH: THE CHALLENGE AND THE RESPONSE (1989).
14. Id.
15. Letter from Susan Paris, President, Americans for Medical Progress, to Lewis Kerman, Assistant Dean, Rutgers University School of Law -- Newark 1 (Apr. 7, 1994) (on file with author).
16. Id. Apparently, AMP is concerned about the human right to own and use animals but is not concerned about other important human rights. For example, the AMP letter warns about the teaching of a "dangerous philosophy" of animal rights, as opposed to the "legitimate philosophy" of animal welfare. Id. It is, however, impossible to make such judgments about speech without making content-based discrimination that would be prohibited by the First Amendment right of free speech if a state institution or actor were trying to define speech in this manner. U.S. CONST. amend. I. Indeed, the AMP letter is a warning to educators to keep particular ideas from being taught because they are "wrong" or "dangerous." That, of course, is censorship, which seems to smack of precisely the sort of dogmatism that scientists claim to reject.
17. Letter from Susan Paris to Lewis Kerman, supra note 15, at 1.
18. Id.
19. Id. at 2. Again, AMP seems to forget about the United States Constitution, which has been interpreted to require that people accused of crimes are presumed innocent until proven guilty. Similarly, the Sixth Amendment guarantees the right to counsel in criminal cases. U.S. CONST. amend. VI. So, when a person is accused of "destroying research facilities," Letter from Susan Paris to Lewis Kerman, supra note 15, at 1, we assume that the person is innocent until proven guilty, and that she is entitled to a defense. AMP, however, seems upset about this arrangement, and apparently believes that people accused of these crimes are not entitled to a presumption of innocence or to counsel in criminal cases.
In addition, "extremist groups" do not "cripple biomedical research with excessive regulation." Id. Extremists cannot impose any sort of regulations -- only legislators and administrative agencies can. So if AMP is concerned that extremists will hire lawyers to lobby for legal and regulatory changes, then they ought to take their fight up with the constitution, which guarantees the right to free speech and to petition government. See U.S. CONST. amend I.
20. John M. Clymer, Letter to the Editor, PHILA. INQUIRER, July 21, 1995, at A18.
21. Frederick K. Goodwin, Animal Welfare vs. Animal Rights 1 (Sept. 20, 1990) (unpublished narrative manuscript to accompany slide show of same title, on file with author).
22. Id. at 7.
23. Id. at 1.
24. Don Barnes, The Dangers of Elitism, 15 THE ANIMALS' AGENDA 44, 44-45 (1995).
25. Kim W. Stallwood, Utopian Visions & Pragmatic Politics: The Challenge of the Animal Rights Movement, Address at the National Alliance for Animals Conference (June 24, 1995) (transcript on file with author). Stallwood has apparently changed his views in light of the fact that in the 1980s, he took precisely the "divisive" posture that he now argues against. For example, Stallwood, who in 1983 was employed by the British Union for the Abolition of Vivisection ("BUAV"), declined to support the Scientific Procedures Act of 1986 as it was endorsed by welfarists because it did not contain prohibitions on particular types of experiments. See GARNER, supra note 9 at 206-07.
26. Publisher's Announcement, JOURNAL OF APPLIED ANIMAL WELFARE SCIENCE (1994).
27. Preface, HUMANE INNOVATIONS AND ALTERNATIVES (1994) This periodical is published by Psychologists for the Ethical Treatment of Animals (PSYeta).
28. Zoe Weil, Book Review, THE AV MAGAZINE, Sept.-Oct. 1995, at 20 (reviewing LAWRENCE FINSEN & SUSAN FINSEN, THE ANIMAL RIGHTS MOVEMENT IN AMERICA: FROM COMPASSION TO RESPECT (1994)).
29. THE AV MAGAZINE, Sept.-Oct. 1995, at 18.
30. See BEYOND ANIMAL RIGHTS: A FEMINIST CARING ETHIC FOR THE TREATMENT OF ANIMALS (Josephine Donovan & Carol S. Adams eds. 1995).
31. Ingrid E. Newkirk, Counterpoint: Total Victory, Like Checkmate, Cannot Be Achieved in One Move, THE ANIMALS' AGENDA, Jan.-Feb. 1992 at 43-44.
32. FINSEN & FINSEN, supra note 11, at 81 (quoting Alex Pacheco).
33. HUMANE SOCIETY OF THE UNITED STATES, STATEMENTS OF POLICY 3-4 (1994). "The HSUS contends that a rigorously applied humane approach can benefit both animal welfare and human health, without compromising either." Id.
34. Id. at 21-22. HSUS supports humane standards for animals in every phase of animal-based food production. Id. "The HSUS supports those farmers and ranchers who give proper care to their animals." Id. at 22. "The HSUS enthusiastically supports farmers who espouse humane, ecologically sound production systems" and claims that it is morally acceptable to consume animals as long as we "eat with conscience" in accordance with principles of "humane sustainable agriculture." Id. at 30.
35. Id. at 31. "The HSUS recognizes that welfare and responsible management of animals may, on occasion, necessitate the killing of wildlife as a last resort." Id. "The HSUS also recognizes that the legitimate needs for human subsistence may necessitate the killing of wildlife as a last resort." Id.
36. Letter from John Hoyt to Clayton Yeutter (Sept. 13, 1990), in A Common Bond, THE ANIMALS' VOICE, Mar.-Apr. 1991, at 54 (emphasis supplied).
37. The mission statement of NAVS claims that it is "dedicated to abolishing the exploitation of animals used in research, education, and product testing." Letter from Mary M. Cunniff, Executive Director, NAVS, to Gary L. Francione 1 (Oct. 3, 1995) (on file with author). NAVS nevertheless supports the use of animals in experiments through its support of the International Foundation for Ethical Research ("IFER"), which is funded primarily by NAVS and which shares its offices with NAVS. Cunniff is a board member of IFER.
An IFER advisory board member describes an experiment in which he was involved in which rats were "euthanized by decapitation, then dissected" aboard the Columbia shuttle. Martin Fettman, Animals in Space Life Sciences Research: A Personal Perspective, INT'L FOUND. FOR ETHICAL RES., Summer 1995, at 6. Fettman acknowledges that "the rodents did not volunteer for the studies" but assures readers that the rodent studies represented "minimal and responsible animal use." Id. at 7.
38. Wayne Pacelle, Wayne Pacelle, Unplugged, THE ANIMALS' AGENDA, Nov.-Dec. 1994, at 28.
39. Mark Harris, The Threat from Within, VEGETARIAN TIMES, Feb. 1995, at 62, 70 (quoting Henry Spira).
40. See FINSEN & FINSEN, supra note 11, at 259.
41. Harris, supra note 39, at 69. "Groups that supported [the Animal Welfare Act] included NAVS, PETA, the Humane Society and most other animal-rights and animal-welfare organizations." Id.
42. Letter from David Cantor, Senior Researcher, People for the Ethical Treatment of Animals, to Louis Peluso (Nov. 27, 1995) (on file with author).
43. Interview: Henry Spira, FOUND. FOR BIOMEDICAL RES. NEWSLETTER, Jan.-Feb. 1993, at 4, 5-6.
44. McDonald's Agrees to Adopt Humane Code, ANIMAL PEOPLE, Apr. 1994, at 1, 3.
45. Memorandum from Michael Giannelli, Executive Director, Ark Trust, to Ark Trust colleagues (Jan. 2, 1996) (on file with author).
46. PETER SINGER, ANIMAL LIBERATION (2d ed. 1990).
47. TOM REGAN, THE CASE FOR ANIMAL RIGHTS (1983).
48. GARNER, supra note 9, at 11. Although I use Regan's views in my discussion of rights theory, I do not mean to suggest that I agree with Regan's theory in all respects. There are salient differences between our approaches.
49. J.J.C. Smart, An Outline of a System of Utilitarian Ethics, in UTILITARIANISM: FOR AND AGAINST 3, 9 (J.J.C. Smart & Bernard Williams eds, 1973).
50. PETER SINGER, PRACTICAL ETHICS 12-13 (1979).
51. GARNER, supra note 9, at 27.
52. Id.
53. SINGER, supra note 46, at 8.
54. JASPER & NELKIN, supra note 2, at 8.
55. Peter Singer, Ethics and Animals, 13 BEHAVIORAL & BRAIN SCI. 45, 46 (1990).
56. Id.
57. SINGER, supra note 46, at 228.
58. Id. at 229.
59. Id. The context of Singer's comments involves an examination of the argument that meat eaters actually do animals a favor by causing them (directly or through consumption demand) to come into existence in the first place. See id. Singer acknowledges that although in the first edition of ANIMAL LIBERATION he rejected this view as "nonsense," see id. at 228, he is now uncertain about its validity and concludes that it is difficult to deny that bringing a being into the world confers a benefit on that being as long as the being has a pleasant life. See id. This leads him to the view that it may be morally permissible to eat animals who have been raised and slaughtered humanely. See id at 229-30.
60. See id.
61. See id. at 230. Notably, Singer argues that if a being does have desires for the future or a continuous mental existence, then it would be wrong to kill that being even if the killing were painless. See id. The problem with this view is that it is inconsistent with Singer's utilitarian theory. The fact that X may have future desires may count against killing X because the frustration of X's future desires is a negative consequence for a preference utilitarian like Singer. Singer, however, cannot maintain that there is any absolute rule against killing such a being because the aggregation of consequences may militate in favor of such killing.
62. REGAN, supra note 47, at 350-51.
63. See SINGER, supra note 46, at 226 ("[O]nce we give up our claim to "dominion" over the other species we should stop interfering with them at all. We should leave them alone as much as we possibly can.") (emphasis added).
64. It may, of course, be questioned as to whether Singer can have even this as his long-term goal; after all, it is possible to conceive of circumstances in which applying the principle of equality would not satisfy Singer's theory of act utilitarianism. The best result for all affected may require that we not respect the principle of equality. As an act-utilitarian, it would seem that Singer would be committed to the option that maximized intrinsic value.
65. See SINGER, supra note 46, at 233.
66. See REGAN, supra note 47, at 205-06, 208-11, 235-37. 67. Id. at 142-43.
68. Id.
69. Id. at 235 ("[W]e cannot determine the inherent value of individual moral agents by totaling the intrinsic values of their experiences.").
70. Id. at 235-39.
71. Id. at 237 ("All moral agents are equal in inherent value....").
72. Id. at 235.
73. Id. at 233-34 (stating that perfectionism holds that "what individuals are due...depends on the degree to which they possess a certain cluster of virtues or excellences").
74. Id. at 235-39. This alternative theory of value avoids some of the more problematic aspects involved in the interaction between the principle of utility and the equality principle relied on by utilitarians. As long as the value of individuals is understood only in terms of intrinsic value, aggregation of consequences -- and nothing else -- will determine right action. This leads to many unacceptable results, such as the secret killing of innocent moral agents, as long as the killing will bring about the best aggregate consequences.
75. For a more extensive definition of "subject-of-a-life," see REGAN, supra note 47, at 243.
76. Id.
77. Id. at 245.
78. Id. at 245-46.
79. Id. at 233.
80. Id. at 248-49. Regan's respect principle shares important theoretical similarities and differences with Immanuel Kant's notion that we treat other persons as ends in themselves and never merely as means to ends. Id. Rational agents have value in themselves independent of their value to others. Id. In a sense, this notion is very similar to the notion of equal inherent value. The difference is Regan's use of the subject-of-a-life criterion to identify in a non-arbitrary and intelligible way a similarity that holds between moral agents and patients and that gives rise to a direct duty to the latter. Id. at 243-49.
81. Id. at 248.
82. Id. at 249, 276-77.
83. Id. at 235-36.
84. Regan argues that this is a prima facie right because the right of the innocent may be overridden in two situations that are derivable from the respect principle. First, when faced with a choice of harming the few or the many, Regan argues that it is better, special considerations aside, to harm the few. Regan calls this the "miniride" principle. Second, when faced with choosing to harm the many or the few, and when harming the few would make them worse off than any of the many, it is, special considerations aside, appropriate to override the rights of the many. Regan calls this the "worse off' principle. These "special considerations" include the presence of acquired duties or rights, certain voluntary acts, including risky activity, and the past perpetration of injustice on moral agents or patients.
The "special considerations" simply serve to clarify Regan's notions of what sort of harm matters for his theory. For example, a slave owner is not "harmed" when a slave is liberated against the master's will. The master is guilty of behavior that violates the right to respectful treatment and the prima facie right not to be harmed. The master cannot, then, be the beneficiary of the miniride or worse-off principles, both of which pertain to the justifiable infliction of harm on moral innocents.
85. REGAN, supra note 47, at 330-31, 353, 363.
86. Id. at 243-44.
87. Id. at 263, 264-65.
88. See infra notes 92-95 and accompanying text.
89. DEBORAH BLUM, THE MONKEY WARS 115 (1994).
90. JASPER & NELKIN, supra note 2, at 90.
91. SPERLING, supra note 7, at 82.
92. FINSEN & FINSEN, supra note 11, at 82.
93. Id. at 55.
94. Id. at 74.
95. For example, prominent animal advocate Henry Spira became involved in the animal issue "after his participation in a New York University continuing education course on 'animal liberation' taught by philosopher Peter Singer." JASPER & NELKIN, supra note 2, at 26. Spira had read an article by Singer about animals and had found Singer's argument for animal liberation "direct and powerful." FINSEN & FINSEN, supra note 11, at 58; see also GARNER, supra note 9, at 64.
Similarly, PETA founders Alex Pacheco and Ingrid Newkirk were heavily influenced by Singer's ANIMAL LIBERATION, and PETA "requires new employees and college students participating in its internship program to read Singer's ANIMAL LIBERATION." JASPER & NELKIN, supra note 2, at 80. Neither is Regan's work required material, nor do PETA merchandise catalogs any longer offer Regan's book for sale. ANIMAL LIBERATION, however, is described in the PETA catalog as a book about "animal rights philosophy," and it is included in a section entitled "animal rights books" together with the advice: "If you only read one animal rights book, it has to be this one." Catalog for Cruelty-Free Living, in PETA NEWS, Spring 1994, at 16. It should also be noted that from the outset of the modern animal movement, many of the leading cases and campaigns involved essentially welfarist positions.
96. On the dust cover of the second edition of ANIMAL LIBERATION, there are several statements about the book, and the following quote is printed in type that is about ten times larger than any of the other quotes: "The modern (animal rights) movement may be dated to the 1975 publication of ANIMAL LIBERATION by Australian philosopher Peter Singer," which demonstrates a quite deliberate representation that ANIMAL LIBERATION articulates a theory of animal rights. SINGER, supra note 46, at back panel (citing Emptying the Cages, NEWSWEEK, May 23, 1988, at 59). The original NEWSWEEK quote simply used "modern movement" without any adjective.
Singer himself refers to the NEWSWEEK article in the text of the second edition of ANIMAL LIBERATION, describing the article as one about "animal liberation." SINGER, supra note 46, at 245. Nevertheless, when the quote was reproduced for the dust cover, the words "animal rights" rather than "animal liberation" were inserted. Id. at back panel.
In his 1985 anthology, IN DEFENCE OF ANIMALS, Singer is described as a prominent proponent of animal rights. IN DEFENCE OF ANIMALS (Peter Singer ed., 1985). Moreover, in his 1995 book, HOW ARE WE TO LIVE?, the cover states that Singer is "hailed as the father of the Animal Rights movement." PETER SINGER, HOW ARE WE TO LIVE? (1995). More recently, and in connection with attempts by advocates to secure the release of chimpanzees, Singer claimed that "[w]e want chimps to cease to be items of property, and to be seen as persons with rights." Scott Allen, Apes on Edge: Air Force Pioneers' Future Unclear, THE BOSTON GLOBE, Nov. 7, 1994, at 1.
97. GARNER, supra note 9, at 27.
98. Andrew N. Rowan, Animal Rights versus Animal Welfare: A False Dichotomy?, THE ANIMAL POL. REP., Apr. 1993, at 1, 2. A three-way paternity dispute appears to be emerging concerning exactly who should be credited with the fatherhood of the animal rights movement. Singer claims the title, although he expressly rejects rights. Regan also claims the title for having developed a theory of animal rights. Finally, Anglican minister Andrew Linzey claims that his book, ANIMAL RIGHTS, "heralded the modern animal movement." See press announcement for ANDREW LINZEY, ANIMAL THEOLOGY (1976).
99. Rowan, supra note 98, at 2.
100. GARNER, supra note 9, at 27.
101. Newkirk, supra note 31, at 43-44.
102. Id.
103. For a comprehensive discussion of the structural defects of animal welfare, see FRANCIONE, ANIMALS, PROPERTY, AND THE LAW, supra note 1; Francione, Animals, Property and Legal Welfarism, supra note 1.
104. See FINSEN & FINSEN, supra note 11.
105. Id. at 5.
106. Id.
107. Id.
108. GARNER, supra note 9, at 234.
109. Id. at 103.
110. Id.
111. Id. at 211.
112. FINSEN & FINSEN, supra note 11, at 119.
113. Id. at 125.
114. Id. at 126.
115. Id.
116. Id. at 127. Some of the difficulty in trying to assess the impact of animal advocates on institutionalized animal exploitation is that people often react based on considerations other than animal concerns. For example, many people do not eat animal products for health reasons, and many oppose experiments involving animals on the ground that such experiments are unsound from a scientific point of view.
117. See FRANCIONE, ANIMALS, PROPERTY, AND THE LAW, supra note 1, at 165-249. A recent study performed by Rowan and two co-authors concludes that "it appears as though animal use (or at least the use of the six species primarily counted by the USDA) has declined by almost 50% since 1967." ANDREW N. ROWAN ET AL., THE ANIMAL RIGHTS CONTROVERSY 15 (1994). Rowan's study and the causal inferences he draws are, however, seriously deficient for at least two reasons.
First, the methodology of Rowan's study is seriously flawed. Rowan relies largely on figures reported by the Institute for Laboratory Animal Resources ("ILAR"), a quasi-governmental organization that vehemently supports animal use. Rowan claims that ILAR "reported a 40% decrease in the number of animals used in the U.S. in the ten years between 1968 and 1978, based on the 1968 and 1978 national surveys conducted by ILAR." Id. at 14. Rowan admits that it is "not clear how much confidence can be placed in the [ILAR] methodology or results" because in addition to general data collection problems as the result of reporting inadequacies and inconsistencies, there were inconsistencies among ILAR reports and an "unexplained discrepancy" between ILAR figures and USDA figures. Id. at 14-15.
Indeed, in congressional testimony in 1981, Rowan stated that although ILAR surveys had been used to support the notion that animal use was declining, the ILAR figures were "just not credible given all the other conflicting information." Use of Animals in Medical Research and Testing" Hearings Before the Subcomm. on Science, Research, and Technology of the House Comm. on Science and Technology, 97th Cong., 1st Sess. 305 (1981) (statement of Andrew Rowan).
Curiously, Rowan relies on the same figures as part of his study but he did not explain what changed his view in the intervening years about the credibility of the ILAR figures. In addition, Rowan's reliance on the ILAR figures is problematic because they include supposed decreases in the numbers of rats and mice used, but current federal law does not require that the use of these animals be reported and reliable data collection is virtually impossible. Nevertheless, and quite remarkably, Rowan concludes that "[d]espite these problems," animal use "has declined by almost 50% since 1967." ROWAN ET AL., supra at 14 (1994).
Second, even if animal use in laboratories has declined, Rowan does not offer any support whatsoever for the notion that this decrease is, in any way, the result of efforts by animal welfarists any more than he or Spira can show that the increase in animal use in laboratories was attributable to the actions of antivivisectionists. Interestingly, Rowan reissued the study in 1995 and now claims that the decline is between "23% and maybe as much as 50%." The 1995 study does not indicate that there was a 1994 version.
118. GARNER, supra note 9, at 122.
119. See, eg., JEREMY RIFKIN, BEYOND BEEF: THE RISE AND FALL OF THE CATTLE CULTURE (1992).
120. U.S. GENERAL ACCOUNTING OFFICE, REPORT TO THE CHAIRMAN, SUBCOMM. ON AGRIC., RURAL DEV., AND RELATED AGENCIES, SENATE COMM. ON APPROPRIATIONS: DEP'T OF AGRIC. ANIMAL WELFARE PROGRAM 21 (1985). For a discussion of this report, see FRANCIONE, ANIMALS, PROPERTY, AND THE LAW, supra note 1, at 216-218.
121. OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, ALTERNATIVES TO ANIMAL USE IN RESEARCH, TESTING, AND EDUCATION 10 (1986). For a discussion of this report, see FRANCIONE, ANIMALS, PROPERTY, AND THE LAW, supra note 1, at 216-218.
122. OFFICE OF THE INSPECTOR GENERAL, U.S. DEP'T OF AGRIC., ENFORCEMENT OF THE ANIMAL WELFARE ACT, No. 33600-1-Ch (1995).
123. Id.
124. See ANIMAL WELFARE INSTITUTE, BEYOND THE LABORATORY DOOR (1985). For a discussion of the AWI position, see FRANCIONE, ANIMALS, PROPERTY, AND THE LAW, supra note 1, at 222-224.
125. See HUMANE SOC'Y OF THE UNITED STATES, PETITION FOR CHANGES IN REPORTING PROCEDURES UNDER THE ANIMAL WELFARE ACT BEFORE THE ANIMAL AND PLANT HEALTH INSPECTION SERVICE OF THE UNITED STATES DEP'T OF AGRIC. (1992). For a discussion of the HSUS position, see FRANCIONE, ANIMALS, PROPERTY, AND THE LAW, supra note 1, at 218-222.
126. FOUNDATION FOR BIOMEDICAL RESEARCH, ANIMAL RESEARCH & HUMAN HEALTH: UNDERSTANDING THE USE OF ANIMALS IN BIOMEDICAL RESEARCH 14 (1992). These statements about the federal Animal Welfare Act are accurate if they are understood to mean that the law allows the experimenter to determine what level of care is "proper," but this is probably not how these statements are understood by the average reader.
127. Id.
128. FINSEN & FINSEN, supra note 11, at 141. Interestingly, Finsen and Finsen note in this regard that some companies, such as Procter & Gamble, have resisted changes in the area of using animals for testing. Animal rights advocate Henry Spira disagrees, arguing that Procter & Gamble has reduced animal use and deserves praise. See Merritt Clifton, In League with the Devil, ANIMAL PEOPLE, June 1995, at 1. Clifton supports Spira's views.
129. See JASPER & NELKIN, supra note 2, at 108-09.
130. GARNER, supra note 9, at 187.
131. Id. at 188. Nevertheless, the animal movement has made some progress in the areas of fur and cosmetics testing, at least as far as educating consumers. It is important to note, however, that in these two areas more than any others, animal advocates have consistently taken an absolutist approach. That is, animal advocates who object to fur do not usually urge that fur be produced more "humanely;" rather, animal advocates have argued that fur wearing should stop immediately.
Similarly, although some animal advocates, such as Henry Spira, have urged incremental reduction of animal use in cosmetics testing, many other advocates have criticized Spira for a "welfarist" approach and have pushed for the abolition of cosmetics testing. So, despite the advice that only gradual reforms work, it appears that if any approach has been successful -- and none really has -- it is the more absolutist approach embodied in the fur and cosmetics campaigns.
132. FINSEN & FINSEN, supra note 11, at 109.
133. Id. at 116.
134. Id. at 117.
135. See id. at 118.
136. Id. at 159.
137. Ironically, even motion pictures that purport to have an animal rights message involve the abuse of animals. For example, in the 1980s, a major studio produced PROJECT X, a story of the illegal rescue of a group of chimpanzees by a military officer who learned that the animals were being used in nuclear radiation experiments.
Television personality Bob Barker became aware that at least some of the chimpanzees used in the film had been beaten and otherwise abused in order to get them to perform. Barker caused charges to be filed with the Los Angeles District Attorney's office, which referred the matter to the Los Angeles Department of Animal Regulation. It was determined that animals had been abused in the making of the movie. Don Barnes, educational director of the National Anti-Vivisection Society (NAVS), had acted as science advisor for the film. The author was counsel to Mr. Barker.
138. JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 49 (1988); see also C. REINHOLD NOYES, THE INSTITUTION OF PROPERTY 290, n.13 (quoting RESTATEMENT OF PROPERTY (1936)). "[L]egal relations in our law exist only between persons. There cannot be a legal relation between a person and a thing or between two things." Id.
139. Singer argues that rights theories, such as Regan's, cannot provide any guidance for practical and incremental implementation of the theory. For example, in discussing the nature of ethics, Singer contends that ethics is not "an ideal system which is all very noble in theory but no good in practice." SINGER, supra note 50, at 2.
Singer identifies rights approaches to ethics as having to "rescue" themselves from their inapplicability to moral issues in the world through the introduction of "complexities" such as formulating very detailed rules for establishing ranking structures for rules. Id. at 3. He argues that utilitarianism does not start with rules but with goals, and thus has greater normative specificity because actions are prescribed or proscribed based on "the extent to which they further these goals." Id. Utilitarianism, Singer claims, is "untouched by the complexities" required to make deontological moral theories -- including rights theory -- applicable in concrete moral situations. Id. These claims are highly controversial.
140. Kim W. Stallwood, A Conversation with Peter Singer, 14 THE ANIMALS' AGENDA 25, 27 (1994). Singer's interview with Stallwood seems to conflict with Singer's overall theory of act utility, which would require that he support only those measures that maximize what Singer holds as his intrinsic values.
141. GARNER, supra note 9, at 193.
142. Id.
143. Id. at 207-08.
144. Id. at 208.
145. Id. at 211.
146. Id. at 194.
147. Id. at 208.
148. Id.
149. Id. ("[S]tanding aloof in principled isolation seems like a futile gesture.").
150. Id. at 193 (internal quotations omitted).
151. By "property," I simply mean that which is regarded as exclusively a means to the end of someone designated as an "owner.'" It does not matter whether the owner is the state or a private individual for purposes of my argument that animal property will virtually always lose in any conflict with the owners of animal property.
152. FRANCIONE, ANIMALS, PROPERTY, AND THE LAW, supra note 1, at 260.
153. Although the notions of "basic" and "absolute" rights are discussed in much philosophical literature, their most lucid presentation for present purposes may be found in the illuminating analysis presented by Professor Henry Shue in his book, BASIC RIGHTS. HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY 18-20 (1980).
According to Shue, a basic right is not a right that is "more valuable or intrinsically more satisfying to enjoy than some other rights." Id. at 20. Rather, a right is a basic right when "any attempt to enjoy any other right by sacrificing the basic right would be quite literally self-defeating, cutting the ground from beneath itself." Id. at 19.
Shue states that "non-basic rights may be sacrificed, if necessary, in order to secure the basic right. But the protection of a basic right may not be sacrificed in order to secure the enjoyment of a non-basic right." Id. Shue's rationale is that a basic right "cannot be sacrificed successfully. If the right sacrificed is indeed basic, then no right for which it might be sacrificed can actually be enjoyed in the absence of the basic right. The sacrifice would prove self-defeating." Id. Shue emphasizes that basic rights are a prerequisite to the enjoyment and exercise of non-basic rights, and that the possession of non-basic rights in the absence of basic rights is nothing more than the possession of rights "in some merely legalistic or otherwise abstract sense compatible with being unable to make any use of the substance of the right." Id. at 20.
154. Id. at 20. Shue does not apply his theory to nonhuman animals, but the principles remain relevant.
155. Harris, supra note 39, at 70 (quoting Henry Spira).
156. This is a primary sense in which my views on rights theory are different from Regan's views. When I use the expression animal "rights," I generally refer to the single right not to be considered as property. Regan, on the other hand, does not recognize this distinction.
157. A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS -- THE COLONIAL PERIOD 36 (1978). For discussions of slavery, see ANDREW FEDE, PEOPLE WITHOUT RIGHTS (1992). See generally ROBERT B. SHAW, A LEGAL HISTORY OF SLAVERY IN THE UNITED STATES (1991).
158. Legal theorist Wesley Hohfeld argues that "the term 'rights' tends to be used indiscriminately to cover what in a given case may be a privilege, power, or an immunity, rather than a right in the strictest sense." WESLEY DE HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING AND OTHER LEGAL ESSAYS 36 (Walter Cook ed., 1923). According to Hohfeld, a right, strictly speaking, is really a claim that has duty as its correlative.
But there are other senses of "right" as well. For example, to say that X has a right may mean that X has a privilege to do something, or that X has the legal power to affect a change in relationship, or that X has an immunity in that some aspect of X's status cannot be affected.
159. Claim rights can exist in personam in that the correlative duty binds a particular person or persons, or such rights can exist in rem, binding everyone unless the rightholder further refines the class. For example, under the law, the dogs that live with a person X are regarded as X's property. X has property rights, in rem, in the dogs. This means, among other things, that everyone has a duty not to interfere with X's ownership of the dogs. Of course, X can allow certain persons to act upon the dogs (including, under the law, to kill them), but everyone else remains bound not to interfere with X's exercise of rights over the dogs.
160. See, e.g., Animal and Plant Health Inspection Service, 9 C.F.R. Sect. 3.10 (1995) (setting forth specific requirements of water for dogs and cats).
161. For example, the dispute between animal advocates and animal exploiters over the USDA's implementation of the 1985 congressional amendments to the federal Animal Welfare Act could be characterized as a dispute about whether the standards urged by animal advocates are cost-justified. See FRANCIONE, ANIMALS, PROPERTY, AND THE LAW, supra note 1, at 211-13.
162. I am reminded of an ad campaign several years ago in which Frank Perdue claimed that his chickens, which he refers to as his "girls," were fed cookies for dessert.
163. See FRANCIONE, ANIMALS, PROPERTY, AND THE LAW, supra note 1, at 99-100.
164. FOUNDATION FOR BIOMEDICAL HEALTH, ANIMAL RESEARCH & HUMAN HEALTH 1 (1992).
165. Joseph Raz, On the Nature of Rights, 93 MIND 194 (1984).
166. Regan has used this expression in conversation concerning these issues.
167. For a discussion of the legal doctrine of standing in the context of animal issues, see FRANCIONE, ANIMALS, PROPERTY, AND THE LAW, supra note 1, at 65-90.
168. Christopher D. Stone, Should Trees Have Standing? -- Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450, 464-67 (1972). Stone states that "each time there is a movement to confer rights onto some new 'entity,' the proposal is bound to sound odd or frightening or laughable." Id. at 455. Stone observes that the law recognizes as "persons" corporations, joint ventures, municipalities, certain partnerships, and nations, and that it is necessary to recognize that animals have inherent value. Stone also argues that ecosystems and other parts of the environment have inherent value that should also be recognized.
169. I do not think that I am being unfair by claiming that the new welfarist would support this measure. After all, there has never been such a progressive piece of legislation introduced in Congress, and new welfarists have supported legislation that is far less progressive.
170.
Richard Delgado, Our Better Natures: A Revisionist View of Joe
Sax's Public Trust Theory of Environmental Protection, and Some Dark
Thoughts on the Possibility of Law Reform, 44 VAND. L. REV. 1209, 1212
(1991).