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<h>AR-Views

   

<h>                          AR-Views Crucial Points

<p>   This essay is designed to be a resource for people willing to
   subscribeAR-Views, but who are not sure, if theyfit the list pattern
   of an animal rights advocate.

<p>   For basic questions about Animal Rights see the AR-FAQ(Animal Rights
   frequently asked questions)

<p>   (to be completed)

<h>the incremental movement toward abolition

<p>   Here is some commentary on the question. It's an excerpt from 48
   Rutgers LawReview 397, 448-468, ANIMAL RIGHTS AND ANIMAL WELFARE
   Copyright 1995 byGary L. Francione. Portions of this article are taken
   from the book RainWithout Thunder. Footnotes are omitted.

<p>   CRITERION #1: An Incremental Change Must Constitute a Prohibition

<p>   ...Thus the first criterion for any incremental change, beyond
   theincremental education of the public about the need to
   abolishinstitutionalized animal exploitation, is that it must prohibit
   somereasonably identifiable behavior. This prohibition must also
   correlate withthe ability of the animal to claim (through a
   representative) the protectionof the right.

<p>   The requirement that there be a prohibition, and not merely a
   regulationthat requires "humane" treatment, is sometimes phrased as
   requiring the"abolition" of a particular practice. Although this is a
   correct descriptionof the matter, it can cause confusion by equating
   the abolition ofinstitutionalized animal exploitation with incremental
   measures that, it ishoped, will lead to that abolition. On the first
   level of moral theory,animal rights theory is clearly "abolitionist"
   in that its long-term goal isthe complete eradication of
   institutionalized animal exploitation. What weare examining now is
   whether there are adequate criteria that can be used toidentify
   incremental means to the long-term goal.

<p>   To say that the incremental means must themselves be "abolitionist"
   iscorrect if the definition includes prohibitions against
   reasonablyidentifiable conduct which, if engaged in, would constitute
   a failure torespect a particular animal interest. But these
   incremental means are bydefinition not "abolitionist" in the sense
   that no one incrementalprohibition will effect the long-term goal of
   ending animal slavery. Inorder to avoid confusion, it is better to
   reserve the use of "abolition" forthe long-term goal of rights theory,
   and "prohibition" as one criterion ofincremental measures that seek to
   realize that long-term goal....

<p>   CRITERION #2: There Must Be a Prohibition of an Identifiable Activity
   Thatis Constitutive of the Exploitative Institution

<p>   Consider the following proposals:

<l>   Proposal 1: Reduce the number of hens confined in a battery cage
   (usuallyfloor space is a twelve inch square) from four hens to three
   hens.

<l>   Proposal 2: Criminalize the use of animals in drug addiction
   experiments.

<p>   These proposals cannot be distinguished using the first criterion
   alone,because, for the reasons stated above, both of these can be
   considered toinvolve prohibitions. Although Proposal 2 accords more
   with the notion of aprohibition, Proposal 1 can be conceptualized as a
   prohibition on keepingfour chickens in a cage.

<p>   This is not to say, however, that there are no distinctions between
   Proposal1 and Proposal 2. With respect to the criminalization of the
   use of animalsin a certain type of experiment, a particular activity
   that is constitutiveof the general practice of vivisection has been
   stopped.

<p>   ...[E]ven if the elimination of the battery cage and the substitution
   of thesmall hen house constitute a prohibition of an activity (i.e.,
   the use ofthe battery cage), that proposal implicates the problem that
   the changenevertheless continues to sanction the exploitation of the
   hens, albeit in adifferent form.

<p>   CRITERION #3: The Prohibition of a Constitutive Activity Must
   Recognize andRespect a Non-Institutional Animal Interest

<p>   Although there is some controversy over whether animals can be said to
   have"interests," as has been discussed elsewhere, for good reasons,
   most people,including those who exploit animals, regard nonhumans as
   having a wide rangeof interests. The law supposedly protects animal
   interests. The problem isthat for the most part, these interests are
   those that facilitate theexploitation of animals for a particular
   property use. For example, the lawprotects the interests of animals
   used in experiments to the extentnecessary to ensure that the animal
   produces data of the quality consideredacceptable by research
   scientists. Indeed, those who support the use ofanimals in experiments
   assure the public that "only those animals that arecared for properly
   will be good research subjects," and that the federalAnimal Welfare
   Act and other sources of regulation provide for the requisitecare. In
   this sense, each form of institutionalized exploitation will haverules
   about the "humane" care of animals that are tailored to thatparticular
   use of animal property and that reflect the particular concernsof that
   exploitative activity.

<p>   To the extent that we seek the incremental eradication of the
   propertystatus of animals, it is necessary that there is a
   corresponding recognitionof the interests of animals in not being
   regarded as property, or, as Reganwould say, in not being treated
   exclusively as a means to human ends. ...Toeradicate the property
   status of animals, there must be a recognition of aninterest that is
   noninstitutional, or that is not simply an interest thatensures the
   animal is used "wisely" in a context of exploitation. It is
   onlythrough recognition of extra or noninstitutional interests that
   incrementaleradication of property status can be achieved; recognition
   of institutionalinterests, such as the interest of a turkey destined
   for slaughter in beingfed, merely reinforces and supports the property
   status of animals. ...

<p>   CRITERION #4: Animal Interests Cannot Be "Tradable"

<p>   ...If there is to be an incremental eradication of the property status
   ofanimals, then there must be a recognition that animals have
   interests thatgo beyond those interests that must be respected if we
   are to exploitanimals efficiently. And, following the second salient
   assumption of animalrights theory, these non-institutional interests
   cannot be tradable justbecause the aggregation of consequences
   indicates that the trade isjustified to secure the human "benefit."
   Indeed, animals are propertyprecisely because animals have no
   interests (beyond those that must beobserved if the animals are to
   serve their "purpose" as our property) thatare safe from being
   balanced away as soon as some human "benefit" isidentified.

<p>   In one sense, this criterion seeks to ensure that the
   incrementaleradication of property status is indeed an incremental
   "assembly" ofpersonhood status for nonhumans through the recognition
   of the inherentvalue of animals. At present, we do not recognize
   animals as having anyvalue except for their value to us. For example,
   philosopher Joseph Razclaims that although animals may have some value
   apart from theirinstrumental use to people, animals cannot have
   inherent value because anyvalue of the animal ultimately derives from
   the animal's contribution to thehappiness and well-being of some human
   or humans, who do have inherentvalue. Raz's views are representative
   of many people's views. The fourthcriterion ensures that each
   incremental move provides for and protects somenotion of the inherent
   value of animals.

<p>   In one sense, this criterion could be said to address the
   enforceability ofprotection for recognized interests. One could say
   that under slavery aspracticed in the United States, there were some
   laws that seemed torecognize that slaves had interests other than ones
   directly related tokeeping a slave alive and fit for whatever purpose
   the slave was intended.For the most part, however, these interests
   were ignored whenever theyconflicted with the interests of the master
   whose property rights were heldto outweigh the slave's interests. If
   animal interests are to be takenseriously, then, to the extent that
   the law regulates the use of animalproperty beyond what is necessary
   to exploit the animal property, thatregulation must be held as
   eliminating the property right to the extentnecessary to protect the
   interest. Otherwise, the victory for animals willbe illusory; as soon
   as the rights of human property owners are triggered,the animal
   interest will be ignored.

<p>   Accordingly, the interest of the animal must be seen explicitly as
   aninterest that is to be protected as would a true "right" within the
   legalsystem. The interest would not be a "right" in the full sense in
   that sinceanimals 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 havenonbasic rights that could be said to be
   building blocks of the basic rightnot to be property. These nonbasic
   rights must, however, be treated asthough they were rights in the
   sense that they will be regarded asprotecting interests that are not
   subject to interest balancing.

<p>   To protect animal interests in this manner would require a very
   deliberateand intentional recognition of a type of legal norm that our
   legal systemdoes not yet recognize: a norm that functions like a true
   right in that itrecognizes an interest that cannot be balanced away,
   but that is held by abeing who has not yet achieved the status of
   being a holder of the basicright not to be regarded exclusively as a
   means to an end. Indeed, everytime we recognize such a right, we move
   away from treating the beingexclusively as a means to human ends; the
   problem is that the being's mostfundamental interests in not being
   eaten or used in experiments or kept in azoo have not yet been
   recognized. These incremental measures may be seen,however, as
   recognizing pieces of the basic right not to be regarded asproperty.
   So, although these interests represent nonbasic rights in onesense
   (the animal does not yet by definition have the basic right of
   notbeing property), the interests are more properly regarded as
   "parts" of thebasic right of animals not to be treated exclusively as
   means to human ends.

<p>   ..In order to recognize that animals have such interests, it is
   necessarythat these interests be understood as trumping the interests
   of propertyowners. And in order to be effective, it would be necessary
   for the legalsystem to recognize that it is animals who hold this
   interest, and not theirowners or government agencies, such as the
   USDA, which protects onlythose animal interests that make animals
   property in the first place. Itwould be necessary to recognize that
   animals (or, more properlyspeaking, the guardians of animals) have
   standing to articulate theseinterests against property owners, which
   would functionally require thatsome sort of guardian be recognized.

<p>   Because animals are regarded as property, and property is, by
   definition andseveral hundred years of accepted understanding, that
   which cannot havelegal relations with persons or other property,
   courts have developeddoctrines that preclude animals or their
   surrogates from articulating theirinterests in courts of law and
   before regulatory agencies. This exclusion isbased on the supposed
   inability (in terms of the power of the court) toadjudicate claims
   made by property or those who purport to represent thatproperty. So,
   if the ... non-institutional interests of animals are to
   benon-tradable, then those interests, which must be seen as
   recognizing"minitrumps" of the property rights of animal owners, must
   be protected bythe legal system. This will require that animal
   interests have legalstanding and that some human actor (and this could
   be the police) havestanding to articulate those claims before the
   appropriate body. This is, ofcourse, not a new idea. In Should Trees
   Have Standing? -- Toward LegalRights for Natural Objects, Christopher
   Stone argued that the inherent valueof nonhumans could be recognized
   and protected by guardians just as are therights (basic rights and
   nonbasic rights) of children or the mentallydisabled.

<p>   CRITERION #5: The Prohibition Should Not Substitute an Alternative,
   andSupposedly More "Humane" Form of Exploitation

<p>   This fifth criterion follows from both aspects of rights theory
   identifiedat the outset of this section: that rights theory requires
   eradication ofthe property status of animals and that the right of
   animals not to beregarded as property cannot be compromised for
   consequential reasons. Inmany respects, this fifth criterion is the
   most significant of the groupbecause it often will be the most helpful
   in determining whether a proposedincremental measure is consistent
   with rights theory, although, like theother criteria, this one is not
   exact and will not provide an easy answer inall cases. But then, the
   idea is to try to make a morally informed decision,and not necessarily
   one that is always right.

<p>   The fifth criterion holds that it is inconsistent with rights theory
   totreat some animals exclusively as means to the ends of others, or
   asproperty, in order to secure some benefit that it is hoped will
   eventuallysecure a higher moral status for other animals. This is a
   serious problemfor the new welfarist who purports to endorse the
   long-term goal of animalrights by using short-term welfarist reforms
   as a means to the end ofabolition of institutionalized exploitation.

<p>   The new welfarist disregards the inherent value of some animals in
   order tosecure a benefit for other animals. For example, the federal
   Animal WelfareAct provides that animals may be used in biomedical
   experiments as long astheir use is "humane" and they are not forced to
   suffer "unnecessarily." Thenew welfarists, who supported the 1985
   amendments to the Act, believe thatthe Act will itself reduce animal
   suffering, but more importantly, that lawslike the Act are "stepping
   stones" to the future recognition and respect ofanimals other than the
   ones whose interests are now being ignored. ThisArticle argued earlier
   that there is simply no way to determine whether lawslike the Act
   actually reduce animal suffering, and that, given thestructural
   defects of welfare theory generally, such laws will generally beheld
   only to require that conduct that facilitates the use of the animal
   asproperty. Apart from the rather puzzling logic of how we get to
   anon-property status of animals by persistent reinforcement of the
   propertyparadigm, there is something objectionable on a theoretical
   level when arights advocate explicitly endorses the property status of
   animals as a wayof eradicating that status on an incremental basis.

<p>   ...So, for example, a complete prohibition on the use of chimpanzees
   incertain procedures can reasonably be said to constitute the
   prohibition of aconstitutive activity, but to the extent that the
   advocate urges or acceptsthat other animals, such as dogs, should be
   used instead...such a rule wouldviolate the fundamental proscription
   against speciesism.

<p>   In order to understand more fully the point of this fifth
   criterion,consider the following example: animal advocates propose to
   lobby for a lawthe preamble of which explicitly recognizes that
   animals have moralinterests and the current configuration of battery
   hens per cage disrespectsthose moral interests. The body of the law
   provides that in recognition ofthe interests that hens have, no more
   than two shall be placed in batterycages, and these cages shall be
   enlarged to provide 196 inches of floorspacerather than 144 inches.
   The egg industry objects to this arrangementvehemently as it is
   "unnecessary" to maximize the value of animal propertyand will, in
   fact, impose a very significant cost on the ownership of
   animalproperty in this context. The law provides that this interest
   must beprotected irrespective of the economic consequences and
   contains penaltiesto ensure that the interests are not recognized
   subject to completedefeasance through a claim of human "benefit."

<p>   The traditional welfarist would undoubtedly support this measure
   because itwill, in the welfarist's view, reduce animal suffering. The
   new welfarist,who seeks as a long-term goal the abolition of animal
   exploitation, willalso undoubtedly support this, not only because it
   will supposedly reducesuffering, but because it is a "stepping stone"
   or "springboard" intoabolition at some future time. The new welfarist
   and the traditionalwelfarist have the same view -- that the measure
   will reduce suffering --but the new welfarist, unlike the traditional
   welfarist, believes thatbecause the measure will reduce suffering, it
   will act as an incrementalmeasure on the road to the long-term goal.

<p>   The animal rights advocate first dismisses the view that avoiding pain
   andsuffering are the only interests that animals (human or nonhuman)
   have. Ifpain and suffering were the only relevant moral interests,
   then what wouldprevent us from using small numbers of "undesirable"
   humans to eradicatelarge amounts of human pain and suffering?
   Obviously, although we all havestrong interests in avoiding pain and
   suffering, we do limit the ways inwhich pain and suffering can be
   alleviated so as to respect otherinterests -- such as the rights of
   humans (and nonhumans) -- as well.Second, the rights advocate
   dismisses the new welfarist view, alsoarticulated by Singer, that a
   measure that reduces pain and suffering willlead to incremental
   achievement of the long-term goal of equal considerationfor equal
   interests (Singer) or the abolition of all
   institutionalizedexploitation (Regan) simply because it supposedly
   reduces pain andsuffering. The rights advocate knows that some
   measures that supposedlyreduce pain and suffering will do nothing more
   than assure that animalsreceive protection that is consistent with
   their status as property, andthat facilitates their use as particular
   types of property.

<p>   The rights advocate begins by asking whether the proposal contains
   aprohibition or a regulation, and concludes that the proposal
   prohibitskeeping more than two hens in the cage. She is unclear as to
   whether, evenif the proposal is a prohibition, it constitutes a
   prohibition of anactivity that is constitutive of the overall form of
   exploitation. She errsin favor of regarding the measure as prohibiting
   a constitutive activity.She is clear, however, that the proposal
   provides for the recognition of aninterest that is extra-institutional
   in that it provides for the recognitionof an interest that is not tied
   to the property status of the hens. Theproposal recognizes that the
   hens have inherent value beyond their status asproperty, which would
   justify only that level of regulation that facilitatedanimal use.
   Moreover, the proposal provides that these interests cannot betraded
   away and constitute proto-rights.

<p>   The problem with the proposal is that it is, on its face, not
   onlyconsistent 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 thebasic right of the hens not to be property
   in favor of a recognition ofmoral status that falls short of
   recognition of the basic right, or thecomplete protection of some
   interest that the animal has in, for example,bodily movement. By
   agreeing to the two-hen arrangement, animal advocatesare trying to
   achieve proto-rights while at the same time endorsing analternative
   form of exploitation -- two hens in a cage -- that is supposedlymore
   "humane."

<p>   In the present case, it seems reasonable to say that the interest
   involvedis the interest that the hens have -- all of them -- in not
   being in thebattery cage in the first place and in having freedom of
   movement that isappropriate to the species. To the extent that the
   proposal recognizes andrespects that interest, then the prohibition
   arguably does not substituteanother form of exploitation and is
   acceptable. That is, assume that aprohibition abolishes the battery
   cage entirely and replaces it with arearing system that accommodates
   all of the hen's interests in freedom ofmovement and thereby fully
   recognizes the interest of the hen's bodilyintegrity. Such a state of
   affairs may be another way of saying that theprohibition ends a
   particular form of exploitation that has violated aparticular
   non-institutional, non-tradable interest that we have now decidedto
   respect. But this sort of substitution differs considerably from
   merelyremoving two of the hens from the cage in that although we have
   not yetabolished the institutionalized exploitation, the substitution
   eliminatesthe exploitation involved in the confinement system through
   a fullrecognition of the interest of the hens in their freedom of
   movement.

<p>   In any event, any substitution of exploitation raises serious
   questions forthe rights advocate. If the incremental eradication of
   the property statusof animals is going to be consistent with rights
   theory, it is importantthat proposed measures not substitute one form
   of exploitation for another,supposedly more "humane" form of
   exploitation. Oftentimes, the alternativeform of exploitation will
   provide in general terms for "humane" treatment,which then feeds the
   whole matter right back through the mechanisms of legalwelfarism
   which, as argued before, are structurally defective andsystematically
   devalue animal interests. But even if the substitute form
   ofexploitation is more definite (i.e., there shall be no more than two
   birdsper cage), and even if the proposal recognizes that the animals
   have someinherent value that justifies the recognition of a
   non-institutional,non-tradable interest, that recognition comes at the
   expense of endorsinganother form of exploitation that rests on the
   legitimacy of the status ofanimals as property. This sacrifices the
   moral right of the animal not to beproperty for a proto-right that is
   designed to effect the incrementaleradication of property status. The
   substitution of exploitation raisesissues of moral conflict with
   rights theory, and incoherence in light of thefundamental assumptions
   of that theory.

<p>   This discussion does serve, however, to demonstrate that as a
   practicalmatter, certain campaigns will be difficult for animal rights
   advocates topursue if they agree with this fifth criterion. It seems
   that the rightsadvocate really has no choice but to condemn any form
   of substituteexploitation, unless that alternative arrangement
   completely eradicates anactivity constitutive of animal exploitation
   through the full recognition ofrelevant animal interests. The animal
   advocate must not herself suggest analternative, and must not agree to
   any alternative offered by the exploiter.To do either would involve
   the rights advocate sacrificing the basic rightof animals not to be
   property in order to secure a less-than-basicproto-right that, while
   it does recognize and respect that animals haveperson-like interests
   that transcend their status as property, is achievedat the cost of
   reinforcing the notion that a "better" system of animalslavery is
   acceptable. These considerations would militate in favor ofconducting
   the sort of campaign that may not succeed (at least initially),but
   that will have a potentially powerful effect on educating members of
   thepublic about animal exploitation. And in many respects, such
   education,whether sought directly in the classroom or as part of a
   militant campaignsuch as one that supports a law to demand the end of
   the egg battery andthat urges no substitute form of exploitation
   (rather than a reactionary andconservative welfarist campaign to make
   the matters more "humane" for thehens) is probably the best thing that
   the animal rights advocate can do atthis stage of history in any
   event.
   
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