Whether at home, on the farm, or at the dinner table, animals play an important role in everyday human life. They serve as companions, a source of livelihood, entertainment, inspiration, and of course food and clothing to people all across the world. Yet animals can and do exist independent from people and, as living beings, they arguably have interests separate and apart from their utility to humanity. As such, society is increasingly faced with legal, economic, and ethical dilemmas about the proper place for animals and the extent to which their interests should be respected, even when those interests conflict with what is best for humans. Recognition of these issues has given rise to a new social movement, one that seeks to attain increased legal protections, and even the recognition of actual “rights”, for nonhuman animals. Not surprisingly, this push has met with a considerable amount of criticism and ridicule from those who believe that the cost of animal rights specifically, and increased protections more generally, is a corresponding reduction in human freedom.
This Article provides a sweeping overview of the issues at play in the debate over increased legal and social protections for animals. It begins with a discussion of the historical and philosophical roots of animal rights before proceeding to an overview of the current state of the law as it relates to animals. The Article then explores the various social forces both promoting and discouraging increased legal protections for animals and the justifications for each position. It concludes with a discussion of the future of animal rights, specifically the types of reforms sought by animal advocates.
In reading the pages that follow, try to keep in mind the various “characters” that are involved. For example, when considering the notion of pet ownership, keep in mind not only your own dog or cat, but also the unadoptable stray to be euthanized at the local animal shelter. If contemplating the farming industry’s effects on cows, chickens, and pigs, also consider what effect reforms to the system would have on the average farmer or agricultural worker whose livelihood depends on the current system. When considering the chimpanzee subjected to medical experimentation, keep in mind the diabetic whose length and quality of life has been extended thanks to that kind of research. Finally, keep in mind the various interest groups involved in the “debate”— the animal activists, the industry opponents, farmers, consumers, and even the average family sitting around the dinner table. Each provides an interesting and compelling perspective.
II.Historical Roots of Animal Protection
Social movements are like novels – each comes with a beginning, followed by a succession of chapters that unfold the story until, ultimately, one reaches the conclusion. The novel here is animal rights, a tale about the advancement of other species in a human-dominated world. Stepping from the shadows of other, better known causes such as the civil rights movement and blossoming from the awareness occasioned by the environmental movement, animal rights is, for the first time, becoming a serious issue for debate. Not long ago, animal rights activists were dismissed as fringe, covered in the press only for their more outlandish activities. [ i ] More recently, however, animal issues have taken a more prominent place in the national media. Suddenly, stories about animals – both good and bad, heroic and tragic [ ii ] – take a more prominent place in the evening broadcast. Major newspapers discuss the newest animal rights books [ iii ] and profile those whose legal careers center on animal advocacy. [ iv ] But in order to truly understand the contemporary situation, one must begin with the first chapter.
A. In the Beginning
Unless one is reading the Bible, most stories do not begin at the beginning. Rather, they begin just as things are about to get interesting. So it is with animal rights. While concern for animals and their well-being dates back hundreds of years [ v ] and animal rights literature extends back to the heart of the Civil Rights Era, [ vi ] to American culture the animal rights movement was born in 1975 with the publication of Peter Singer’s still-controversial Animal Liberation . [ vii ] In the book, Singer introduces the reader to issues that remain at the forefront of animal protectionism today – laboratory experimentation, factory farming, and vegetarianism. In each chapter, the author details the horrors endured by animals at society’s cold and at times oblivious hand. Singer accuses American society of speciesism – “a prejudice or attitude of bias in favor of the interests of members of one’s own species and against those of members of another species.” [ viii ] In its place, Singer argues humans should give equal consideration to the interests of animals when making any decision that affects the well-being of other species. Thus, in Singer’s world, the interests of all living beings are the same and no one, human or otherwise, should be given preferential treatment.
The irony of associating the birth of animal rights with Peter Singer is that as a utilitarian, he does not believe that “rights” truly exist at all or form the basis for moral or legal entitlements. As such, no one – be it man, beast, or shrub – possesses rights. [ ix ] Thus, to theorists like Singer, animals are not entitled to any fundamental, inviolable privileges or protections. But then, neither are humans. Rather, all actions should be judged based on a cost-benefit analysis. As applied by Singer, the benefits to humans that flow from the domination and perceived mistreatment of animals does not, as a practical matter, overcome the costs imposed on those other species. Animal rights advocates, as it turns out, come to the same conclusion, but based instead on the notion that there are certain rights so fundamental that they extend to other species and must be respected by human civilization.
More important than Singer or his theories, however, is the recognition that he did not actually give birth to the animal rights debate. Rather, questions about the status of animals in relation to humanity are not even a twentieth century development and instead dates all the way back to ancient Greece’s greatest thinkers. Some, like the great mathematician Pythagorus, believed animals deserved some protections and as such chose to eat a vegetarian diet. At the other end of the philosophical spectrum, Aristotle forcefully argued that humanity was superior to all other Earth life and that such responsibility carried with it no ethical obligations towards lesser creatures. [ x ] Later philosophers, such as Rene Descartes and John Locke also considered animals’ place in human society. [ xi ] Finally, although not speaking in the context of animal rights, Jeremy Benthan famously contended that the protection of any creature should depend not on its ability to reason, but its ability to suffer. [ xii ]
Religion and science also influenced human perception of animals. [ xiii ] While Christianity brought about many reforms in Roman society that improved the treatment of people towards one another, it did so in part by reinforcing the lesser status of other creatures and the lack of ethical obligations owed to them. [ xiv ] With a few notable exceptions, [ xv ] Western religions have generally taught that humans stand in a morally superior position to other animals [ xvi ] and have on occasion challenged science’s best evidence of humanity’s close relationship to other forms of life. [ xvii ] By contrast, several eastern religions such as Buddhism and Hinduism contain tenets that recognize the need to account for all life when considering the proper bounds of ethical action. [ xviii ] Indeed, some animals are considered sacred; take for example the cow to Hindus or the cat to ancient Egyptians.
Science has played a more complicated role in society’s treatment of animals. While vivisection – the experimentation on and dissection of animals for the advancement of scientific knowledge and human benefit – has subjected animals to untold pain and torment, the fruits of such procedures have also enabled medical breakthroughs that have lengthened and improved the quality of human life. While the continued propriety of such procedures is highly contested [ xix ] , their historical significance on human attitudes cannot be questioned. Yet science has also helped to break down the barriers between humans and other species, most notably through Charles Darwin’s theory of evolution and subsequent research that demonstrates the genetic similarity between humans and other animals.
The historical role of animals can also be viewed chronologically. As will be discussed later [ xx ] , through much of human history animals have served as a kind of commodity valuable to human enterprises, but devoid of any independent legal interests. As such, many, if not all, of the earliest laws relating to animals revolved around their proprietary value to their owners. Thus, for example, the owner of cattle might be able to sue another person for the damage that individual caused to one of his cows (his investment), but that same cattle owner could not be held liable for any harm he himself caused to that same creature. In the late nineteenth century, this purely economic vision of animals began to change with the publication of a book entitled Animal Rights , the formation of both the British and American Societies for the Prevention of Cruelty to Animals, and the enactment of the first anti-cruelty laws. These laws for the first time recognized that animals themselves have an interest in being free from unnecessary and cruel suffering by giving the state the power to punish anyone who inflicts such pain on a non-human creature. The instigation of World War I and the conflict and uncertainty that persisted until after World War II largely stifled further advances for animal interests during this period. In post-World War II America, however, concern for animals was reborn as organizations such as the Humane Society of the United States educated the public about animal welfare and society continued its march towards increased urbanization.
Moreover, the move from the country to the city and the transition of animals from mere means of livelihood to household pets further modified the human perception of animals. As more people developed emotional bonds to animals, they consequently began to view them, or at least certain species of animals, as deserving special protections. This development and further refinement of animals’ place in a human-centered world continues today on an ethical and legal basis.
With that historical foundation in place, the story now turns to the basic legal and social concepts fundamental to the discussion that follows.
B. Animals in Society Today
The prevalence of animals in society makes a detailed discussion of their importance unnecessary. Nonetheless, it is worth briefly summarizing some of the figures to emphasize just how important animals are to American society and the economy. According to the Census of Agriculture, in 1997 there were 98,989,244 cattle and calves used in United State agriculture, 61,206,236 hogs and pigs, 7,821,885 sheep and lambs, and over 7 billion chickens used for egg and meat production. [ xxi ] In that same year the total value of all cattle and poultry was nearly $100 billion. [ xxii ]
Agriculture is but the tip of the proverbial iceberg, however. Anyone who questions the bond between people and their pets need only look at statistics detailing the number of people who celebrate their pet’s birthdays, stay home from work when a pet is sick, or greet their pet first when coming home in the evening. [ xxiii ] As detailed by the American Veterinary Medical Association:
Veterinarians in private clinical practice are responsible for the health of approximately 53 million dogs, 59 million cats. Bird ownership has risen over the past 5 years from 11 million in 1991 to approximately 13 million birds. The number of pleasure horses in the U.S. is about 4.0 million. Other pets such as rabbits, ferrets, guinea pigs, hamsters, gerbils, other rodents, turtles, snakes, lizards, other reptiles and many other animals primarily kept as companion animals. Rabbits and ferrets are owned by 2.3% of households in the U.S. with a total population of 5.7 million; 4.8 million rodents are owned by 2.3% of households and 1.5 % of households own 3.5 million reptiles. The fish population is estimated at 55.6 million owned by 6.3% of households. [ xxiv ]
Of course, animals can also be found in the laboratory. A wide variety of species are used in research and experimentation. [ xxv ] In fact, over 18 million animals are used in research and experimentation in the United States. [ xxvi ] The controversy surrounding such experimentation is beyond the scope of this Article, however, even for a superficial discussion. For such an overview of the animals in research controversy, one that is admittedly biased, see: http://www.hsus.org/ace/11366 ; http://www.hsus.org/ace/11366
C. The Definition of Rights
Thus far, the term “rights” has been used fairly frequently and loosely in this Article without a definition of the word’s meaning. Similarly, society, especially American society, often lacks an understanding of the exact meaning of the term when its members use “rights” to describe various legally protected interests. While this is not the place for a comprehensive discussion of the meaning of “right,” a brief introduction is warranted so as to inform what is meant by “animal rights.”
Like so many other concepts there is no single, workable definition of “right”. Put most succinctly, but consequently also most superficially, a right is “that to which one is morally or legally entitled.” [ xxvii ] Then, a right can be an entitlement. One might also look for the answer in natural law, which is the source of “right” as embodied in the Declaration of Independence. [ xxviii ] From this perspective, a right is “the idea that human beings have by nature . . . certain rights that governments cannot legitimately violate, and that political law must respect.” [ xxix ] A right, then, may also be something a person is born with. One could also take a more functionalist perspective, viewing rights as those principles that protect individuals from the rest of society. [ xxx ] To conceptualize, rights are thus like fences, keeping the world out of certain areas of the individual’s life. [ xxxi ] Trying to mesh these different conceptions, rights might be less a concept than a tangible entitlement some creatures are born with. They serve to protect individuals, in some cases at all costs, from the needs, wants, and prurient interests of the rest of society. Such a definition, however, fails to make a critical distinction—that rights can be legal or philosophical.
Legal rights are those that the government, in some fashion, provides protection for. Thus, when we talk of constitutional rights, we mean those interests that cannot be taken away by a court, government agent or action. Philosophical rights are those recognized as inherent to human civilization; those that are based on notions of basic morality. Thus, these rights do not depend on the enactment of any formal law before they will be deemed to exist. Philosophical rights are those so fundamental that human society declares their existence even where it is unlikely that they will be enforced. For example, people, we might say, have the right to be free from torture, even in countries where this right is not enforced or recognized by law. Such rights, then, may not be universally applied and may even be violated regularly in some locations, but they exist nonetheless as the ethical and moral underpinnings of civilized society.
Legal rights, by contrast, are those that will be enforced by the law and provide substantive protections for the rights-holder. They are those enforceable in a court and recognized under the law. Some come from statutes, others from a constitution (state or federal), and still more from the common law made by judges. Most are express and easy to identify, at least in principle, while others remain shrouded in the penumbras of other recognized rights waiting to be discovered. Their existence, however, is dependent upon the benevolence of the lawmaking authority to recognize and enact them. Moreover, competing legal rights must be balanced against one another to determine which should win out in any given situation wherein the two conflict. Legal rights also cannot be taken away by private individuals, though the scope of that protection is perhaps often misunderstood. The simple existence of a legal right does not make it impossible for another to take that interest from another, rather the existence of that right will provide the aggrieved person with a remedy for that invasion. To this point, however, society recognizes legal rights for only one species – humans. Therefore, in seeking to expand society’s conception of rights, the nuances of one’s definition matter, at least to members of the animal advocacy community. [ xxxii ] These, however, might be best thought of as characterizations of philosophical rights.
Closely related to the concept of legal rights, and equally nebulous, a legal interest is “any interest that the legal proceeding has the authority to address.” [ xxxiii ] Legal interests may better be understood in the negative – a deprivation of a legal interest equates to a cognizable injury capable of being remedied by the law. [ xxxiv ] While closely related to and important to the issue, the Supreme Court has emphasized that the determination of legal interests is separate from a question of standing (or the ability to have a court hear your case). [ xxxv ]
III. Present State of the Law
Under the law as it now stands, animals enjoy some legal protections from mistreatment, but they remain unable to enforce those entitlements themselves. Instead, the state takes it upon itself to monitor, with varying degrees of success, human society to ensure that its members do not violate the safeguards meant to protect other species. To understand the meaning of this state of affairs, a little legal background is warranted.
A. Legal Personhood
The law is full of classifications, one of the most important of which is the distinction between persons and nonpersons. While there is no rule that prevents nonpersons from holding legal rights and protections, only legal persons have the capacity to enforce and safeguard those entitlements. In reality, personhood is nothing more than a legal fiction, a term attached to certain entities that allow them to assert their rights and privileges. To the nonlawyer, it is probably no surprise that today all people are persons. It might be more surprising to learn that this was not always the case [ xxxvi ] or that entities like corporations and the government are legal persons. [ xxxvii ] Animals, however, are not persons and thus, unlike in the wild, cannot fend for themselves in a court of law to protect their interests. Moreover, this fact also limits the benefits animals can receive.
Personhood, then, for these purposes boils down to having the ability to sue. To be able to sue, a potential litigant must have standing, as referenced earlier. Standing might be thought of as the confluence of a legal person, a legal right, and a legal interest seeking to redress a legal wrong. Because animals are not persons, they cannot sue. Moreover, the standing requirements articulated by the Supreme Court make it difficult for activists to sue on behalf of animal interests because rarely can they assert a sufficient legal injury to their legal interests. As articulated in Lujan v. Defenders of Wildlife , to have standing a plaintiff must:
1. have suffered an injury of fact,
2. caused by the defendant,
3. and that can be remedied by the judicial forum. [ xxxviii ]
This injury “must invade a legally protected interest which is a) concrete and particularized and b) actual or imminent, not conjectural or hypothetical.” [ xxxix ] Animal advocates often have trouble meeting this injury in fact test for many animals, especially those used in research because they have no personal relationship with the creature. Indeed, while courts have been willing to recognize an aesthetic injury to support a lawsuit [ xl ] they have at the same time refused to read into statutes private causes of action. [ xli ]
While it is absurd to imagine a nonhuman actually litigating a case [ xlii ] , it is less difficult to imagine a human attorney representing an animal client. That prospect, however, raises the potential for abuse by trial lawyers seeking out lawsuits. As such, any change to the personhood status of animals would require consideration not only of what types of claims could be brought “by” the animal, but also what human(s) should be allowed to assert those rights on the animal’s behalf. Moreover, as discussed later, there remains conflict within the animal protection community itself whether such a change should be a primary goal of the movement or simply the natural result of other substantive societal reforms. [ xliii ]
To the law, animals are property: they are goods to be bought and sold, acquired and maintained. This principle is deeply interwoven into the law. Indeed, some of the first cases read by law students in Property class are Pierson v. Post [ xliv ] and Keeble v. Hickeringill [ xlv ] ; each of which is about the acquisition, ownership, and control of wild property – namely foxes and ducks. Treating animals as property is not strictly a matter of law, however, as it is also deeply entrenched in Western religion. The Old Testament, for instance, decrees that animals are goods over which humanity has dominion. [ xlvi ] Philosophers, too, have considered the property status of animals. John Locke, for example, wrestled with the proprietary nature of humanity’s interactions with animals. To him, animals were something common to the world, not unlike the air we breathe. [ xlvii ] How could something of that nature be legally possessed by any one individual? On the other hand, animals have the potential and perhaps purpose of serving humanity. Towards that end, animals can best benefit individuals within society by giving people the ability to possess such creatures, to be able to control others’ access to certain animals. [ xlviii ] Thus, to the law, religion, and philosophy, animals are chattels whose destiny is rightly directed by humans. As property, they have no interests independent of those assigned by humanity. And yet, animals are not just like any other household property. [ xlix ]
C. Animal Cruelty
Unlike the household toaster, the law regulates how people treat their animals. Anti-cruelty laws prevent inhumane treatment to animals, subjecting violators to criminal sanction for causing unjustified harm to other creatures. Penalties range from misdemeanor fines in some locations to a recent trend towards making such conduct a felony. [ l ] Thus, much like criminal statutes designed to protect humans, the state has the power to penalize those who hurt animals. This sets animals apart, giving them special status within the property regime. They are entitled to certain minimum guarantees, namely that they will not be made to suffer unnecessarily.
It is important to recognize at the same time, however, that such anti-cruelty regulations do not solely have animal interests at heart. Quite apart from any benefit the animal might receive from being free from cruel treatment, such laws also help to protect human investment in property. Moreover, many who support such laws are truly concerned not with the actual harm to the animal, but with what such treatment indicates about the abuser – namely a propensity to violence that might ultimately lead to violence against humans. Given these concerns that exist independent of animal interests, it is not surprising that such laws are often vaguely written (what after all is cruel and what is unnecessary?) and are often under-enforced. [ li ]
D. Federal Laws
While animal cruelty statutes serve as the most important state laws “on the books” to protect animals, two federal laws seek to regulate the way that that animals are used in agriculture and science. The Federal Humane Methods of Livestock Slaughter Act regulates how animals raised for consumption are killed. [ lii ] Similarly, the Animal Welfare Act seeks to protect animals used for scientific and medical research by limiting the procedures that can be performed on such test subjects. [ liii ] While others have written extensively on these two laws, for these purposes it is most important to recognize the driving force behind these laws. For better or worse, neither law seeks to bestow absolute protections upon the subject animals, but instead seeks to strike a balance between the human interests in research and cost efficient delivery of agriculture products and the interests of animals not to suffer “needlessly.”
Of course, no discussion of federal law would be complete without a brief introduction to the most commonly known animal protection law—the Endangered Species Act . [ liv ] At base, the law operates by providing criteria for listing species threatened by extinction as “endangered” and then regulating and limiting human activities in areas where those animals are known to exist. The result, in addition to preserving species who might otherwise be lost to the world, is to increase the cost of development and in some cases prevent development altogether. Indeed, as originally drafted, the law was absolute in its protections, providing no exceptions from conservation of listed species, and as a result worked to temporarily stop the construction of the Tellico Dam in Tennessee because the area was the last known habitat of the Snail Darter. [ lv ] As a result, the law was amended to provide for exceptions to strict conservation.
E. Damages to Animals
Unlike harm caused to humans there is rarely a private cause of action to redress injuries inflicted upon animals. Surely, an animal owner can recover for the lost value of the animal, but in the case of a dog or cat such sums are usually insufficient to justify filing suit. No court under the current legal regime would award an animal damages for injury to its being. Moreover, most courts deny animal owners the ability to sue for the damages they incur to their person, in the form of emotional damage, when their animals are injured or killed. [ lvi ]
Several jurisdictions in recent years have considered changes to this rule. In 2003, several Colorado state legislators sponsored a bill that would have allowed pet owners to receive up to $100,000 in emotional damages for injuries inflicted upon their pets. [ lvii ] The sponsors withdrew the bill, however, before any votes were taken after popular skepticism led several other legislators to ridicule the bill. Tennessee in 2000 went substantially further and actually enacted legislation allowing animal owners to recover emotional damages for injuries inflicted upon their pets. [ lviii ]
For a more thorough discussion of this issue, please see http://animallaw.info/topics/spuspetdamages.htm .
IV. Animals in Human Society
Thus far, the “story” of animal rights has been confined to the background historical and legal concepts necessary to understand the material that follows. No one would dispute that animals play an important, perhaps even vital, role in human society. Nonhumans provide the backbone to economies, to the advancement of science, and even to some people’s emotional and physical well being. In considering and evaluating the materials to follow, add the following to the more general list of characters already introduced.
Consider first animals that exhibit human characteristics, or how people attribute animal characteristics to some animals. For example, Alex is a parrot in Massachusetts that can speak. Unlike the pet store parrot, however, Alex does more than mimic sounds. He recognizes and can identify colors. He can count. Researchers at MIT are debating whether he can communicate. It is there that he lives in his cage, along with several other birds, subject to the close scrutiny and tests of scientists trying to ascertain the limits of his linguistic capabilities. [ lix ]
Renowned scholar Martha Nussbaum begins her critique of Professor Wise’s previous book with Flo’s story:
Flo, a female chimpanzee, died of old age by the side of a stream. Flint, her son, stayed by her corpse, grabbing one of her arms and trying to pull her up by the hand. He slept near her body all night, and in the morning he showed signs of depression. In the days following, no matter where he wandered off, he always returned to his mother's body, trying to remove the maggots from it. Eventually, attacked by the maggots himself, he stopped coming back, but he stayed fifty yards away and would not move. In ten days he lost about a third of his body weight. Finally, after his mother's corpse had been removed for burial, Flint sat down on a rock near where she had lain down, and died. The post mortem failed to show the cause of death. Primatologist Jane Goodall concludes that the major cause of death had to be grief: "His whole world had revolved around Flo, and with her gone life was hollow and meaningless. [ lx ]
Next, consider the new ways in which society finds to utilize animals for their benefit. In South Dakota there is a cow named Yoon. She looks and probably acts line any other bovine, but she is not. Unlike other livestock, her “purpose” is not to provide meat or milk to society. Yoon, like an ever-increasing number of animals, was genetically engineered by human scientists. Unlike some clones, designed for the novelty of science or for food production, Yoon and her siblings were created to save lives. Each produce human antibodies, antibodies the cows’ creators hope will someday do everything from treat ear infections to guard against bio-terror weapons like anthrax and smallpox. [ lxi ]
Such miracles might become a reality by infecting the animals with various bacteria and viruses. The antibodies’ response could be used to treat and prevent illness in the same way we now use gamma globulin to combat hepatitis. Other animals are similarly being used. Research is underway, for instance into producing pigs whose hearts could be used for human transplants and who might better produce human insulin for diabetics.
Finally, consider a dog. Luke was a yellow Labrador Retriever and a family pet. Over the course of his ten year life, he became a dear member of the family who was much loved. As often happens with our human loved ones as they age, Luke’s health began failing as he got older. His veterinarian prescribed special diet food for him to go along with his multiple, daily medications. He also had to have several surgeries and costly diagnostic tests from time to time. Unlike a human family member, Luke’s family always had an alternative to treating his ailments—euthanasia. Thus, when Luke blew out his knee like a football player, his family was given three choices: surgery, leaving it be and controlling pain with medication, and putting him down. Ultimately, when Luke came down with something he could not recover from, his family did not wait for the end to come on its own and instead “put him to sleep” to cut short his suffering. All along the way, these life choices were not, and perhaps could not be, made by Luke.
A. Differing Perspectives on Animals
Not everyone will react to the above biographies above in the same way. Thus, for instance, some might consider the use of Yoon a travesty, while others a necessary cost of promoting human health, and still others yet another creative way to make an otherwise dumb animal useful. For purposes of simplicity, this article assumes only two general groups of people—those in favor of increasing legal protections afforded to all animals and those opposed to all such attempts. The discussion, then, is one of pure theory that intentionally omits the considerations of the great many people who find themselves in the middle of this ideological spectrum. This drastic approach is taken not with the illusion that it represents reality, but rather with the hope that by contrasting these radically divergent viewpoints the reader can begin to place him/herself along that spectrum.
1. Rights versus Welfare
Even within the animal protection movement there is disagreement about the goals that should be sought on behalf of other species. Roughly, there are three competing philosophies: traditional welfare theory, animal rights, and “new welfarism.” While each seeks to advance the protections afforded animals under the law, they differ in approach and the ends sought to be attained.
Briefly, one might understand welfare and rights to lie at opposite ends of the protectionist spectrum. Animal welfare advocates support the types of reforms long sought on behalf of animals – increased penalties for unjustifiable harsh treatment, in other words. Welfarists accept the legal status of other species as property, even condoning such a classification. Moreover, they acknowledge that animals always will be, and perhaps to some extent should be, used as resources for humanity. The limit, however, is that animals should not suffer unnecessarily at the hands of people. [lxii] In short, then, welfare advocates seek a benevolent dominion over animals that expressly reaffirms humanity’s superiority to other species.
Many of the contemporary gains made on behalf of animals are welfare-based in nature. For instance, at the federal level, statutes such as the Animal Welfare Act [ lxiii ] and the Humane Slaughter Method Act [ lxiv ] seek to ensure that animals used in industry are treated appropriately. State anti-cruelty laws aim to proscribe the mistreatment of animals by private citizens, in other words setting the bounds for the treatment of dogs, cats, birds, and the like. [ lxv ]
Take note that the goal is to regulate unnecessary pain and suffering, not all suffering. This means that it is all right to eat animals, to use them for some experimentation, to domesticate them, and in some circumstances to kill them. Moreover, the effectiveness of welfarism in protecting animals depends on how broadly or narrowly a society chooses to define “unnecessary” in various circumstances. [ lxvi ] Thus, welfarists seek no fundamental change in the legal order, only increased protections within the current regime.
On the other end of the protectionist spectrum lie animal rights advocates. Rights advocates seek to first change the fundamental legal status of animals away from mere property towards something closer to personhood. Such a change would open the door to more expansive reforms down the line. At base, rights advocates believe that all animals, human and otherwise, possess some inalienable rights that deserve recognition and protection. To the law, these might be characterized as fundamental rights that must never be abridged except in the most dire of circumstances. The number and scope of such rights do not come in one size, but rather are unique based on the intellect and capabilities of each species. [ lxvii ] Therefore, rights advocates do not seek to equate human rights with those of animals, but rather recognition that some animal rights do exist. [ lxviii ]
Thus, rights advocates do not accept the property status of animals nor the wisdom of subjecting them to human domination. Animal experimentation in laboratories, even if helpful to humans, is unjustified. Factory farming, and perhaps the meat industry itself, is immoral. Indeed, one must be careful not to eat produce sprayed with pesticides that cost insects their lives. [ lxix ] Even the concept of pet ownership is suspect under the rights framework. [ lxx ] Acceptance of this rights position requires a rejection of American law as it currently stands. [ lxxi ]
Such seemingly radical reforms make rights advances hard to come by. As such, those dissatisfied by both extremes may look for an alternative approach. Lying between the rights and welfare points on the spectrum exists what Professor Francione calls “new welfarism.” [ lxxii ] At its most fundamental level, new welfarism represents a sort of compromise between rights and welfare whereby animal advocates accept traditional welfare gains in the hope that they will eventually amount to a recognition of animal rights. The new welfarist is identified by several characteristics. First, she rejects the notion that animals are merely tools for humanity. [ lxxiii ] Second, is a rejection of the traditional animal rights framework as too radical to effect real change. [ lxxiv ] Third, the strategies they instead employ tend to mimic those of traditional welfare-based groups. [ lxxv ] To rights activists, the effect of such an approach is to substantially reinforce the human dominance over animals they claim to reject. [ lxxvi ] In so doing, they perceive no “moral or logical inconsistency in promoting measures that explicitly endorse or reinforce [a] … view of animals [as instrumentalities of humanity] and at the same time articulating a long-term philosophy of animal rights.” [ lxxvii ] In a more sympathetic light, new welfarists might be thought of as realistic rights advocates – taking what they can get now and hoping for more expansive reforms in the future.
2. The Anti-Animal Rights Position
Animal rights opponents object to both the concept of rights for nonhumans and its practical implications. On a philosophical level, animal rights would devalue humans by putting them on par with other, perhaps all other, life on the planet. Even if one were to accept that the differences between people and animals are subtle, it is the accumulation of these differences that makes civilization possible. [ lxxviii ] To equate humans to animals, to really believe we are the same, one must dismiss “innate human characteristics, the ability to express reason, to recognize moral principles, to make subtle distinctions, and to intellectualize.” [ lxxix ] In other words, one must dismiss a lot about humans to equate them with other species. Moreover, such objections do not encompass the many religious objections to animal rights. Many religions teach that it is the existence of a soul that makes human life so sacred and only humans possess souls. Finally, one should not overlook the biblical grant of dominion over animals given to man.
In a similar but distinct vein, rights are something intrinsically unique to humans. Rights are simply a term we attach to the special significance given to human life. The existence of rights, and the extension thereof, is a human debate; one in which, by definition, animals cannot have a voice. [ lxxx ] This principle has broader implications. Peter Singer is famous for his accusation that humanity is “speciesist,” or heavily favors its own kind. Others mean the same thing when they call humans homocentric or narcissistic. [ lxxxi ] They complain people always put people first. But is that so wrong? Why shouldn’t a species care most for its own, even if that means exploiting another? Put another way, this is how the animal kingdom works. A mother bear does not care what effect her actions have on the rest of the animals in the forest, only on her cubs. The coyote, when he devours livestock, does not consider the impact such a taking will have on the rancher’s livelihood, must less the well-being of the cattle.
Moreover, the rights opponents contend, society always has and still does reject any notion of rights for animals. As Steven Wise, one of the leading animal rights advocates in the country, notes, people have long treated animals as “things.” [ lxxxii ] Animals are things, like trees and oil, which we use for our own benefit. This is a reality recognized by the courts. Take for example the United States Supreme Court’s opinion in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah . In that case, a Florida city passed an ordinance aimed at prohibiting the animal sacrifices performed by members of the Santeria religion. The law was challenged in court on First Amendment free exercise of religion grounds. As part of its defense, the city claimed the law was intended to safeguard animals from unnecessary suffering. The Court rejected this argument almost out of hand, making numerous references to the cruelty humanity inflicts on animals all the time, conduct not regulated by the statute. [ lxxxiii ]
In speaking about the anti-animal rights position, it is important to note that many such people do not draw the same distinction between rights and welfare as done by animal advocates. More importantly, few would classify themselves as against true animal welfare—some sort of philosophical position that seeks to inflict truly unnecessary harm on animals. Quite to the contrary, most such people believe instead that there are already adequate animal protection laws on the books and that any additional laws can only be intended by the animal protection movement as a prelude to future more controversial reforms.
B. Forces Inhibiting Change
Apart from competing philosophies, there are external forces at work that discourage greater gains for animal protection.
1. Economics (domestic and international)
Money as they say, talks. Animals are, for lack of a better description, big business in America and elsewhere. A look around the average house demonstrates the important role that animals play in the economy. Household use of animal products extends far beyond leather shoes and the food in the refrigerator, however. As Professor Wise points out:
the blood of a slaughtered cow is used to manufacture plywood adhesives, fertilizer, fire extinguisher foam, and dyes. Her fat helps make plastic, tires, crayons, cosmetics, lubricants, soaps, detergents, cough syrup, contraceptive jellies and creams, ink, shaving cream, fabric softeners, synthetic rubber, jet engine lubricants, textiles, corrosion inhibitors, and metal-machining lubricants. Her collagen is found in pie crusts, yogurts, matches, bank notes, paper, and cardboard glue; her intestines are used in strings for musical instruments and racquets; her bones in charcoal ash for refining sugar, in ceramics, and cleaning and polishing compounds. [ lxxxiv ]
The family pet is likely a product of the dog breeding industry. Factory farming techniques helped put meat, cheese, and eggs on the table at a reasonable price. Dog racing, horse racing, and hunting provide both entertainment and income to millions across the country. The list is nearly infinite, but the point is that the current status and treatment of animals is deeply interwoven into the American capitalist system. It must therefore be considered what effect a change to the legal status of animals would have on the national labor market and cost of goods. Any change to the law that significantly alters the relationship between humanity and this lucrative property line would have deep repercussions within the economy.
International economics also discourage significant changes to the legal status of animals. With increasing globalization and the emergence of a worldwide marketplace has also come the proverbial “race to the bottom” in regulatory practices. Thus, as a result of the comprehensive American laws meant to provide protection to the average employee, companies have moved many jobs to other countries where there is less workplace regulation and the cost of labor is far less expensive. [ lxxxv ] Similarly, it seems likely that if the United States were to create more substantive protections for animals, thereby increasing the cost of delivering animal products to consumers, corporate farms and ranches would simply move their facilities to another country where animals do not enjoy similar protections. In so doing, they would be able to provide a comparable product at prices far less than could domestic producers who would in turn be forced out of business. The result, though “feel good” for animal advocates, might net only negligible gains for animal welfare. In a world, then, where anything that has to be there overnight can be, animal advocates must propose not only legislation in their home, but also seek international change as well.
2. Culture and Tradition
Perhaps more important than money, human culture encourages a continuance of society’s current treatment of animals. The use, and some might say abuse, of animals is well established. While one might feel sympathy for the needs of his or her own dog or perhaps even the stray on the corner, that same concern probably does not extend to the turkey at Thanksgiving. Indeed, the recognition of animal rights might well mean the end of many cherished items and traditions, such as leather seats, shoes, and baseballs.
Similarly, there are hobbies and sports dependent on the treatment of animals as something less than legal individuals. Animal rights opponents quite rightly point out that both hunting and fishing might well come to an end if animal protections are allowed to advance too far, not to mention other sports such as dog and horse racing. Moreover, people have become used to viewing animals as things, as exhibits at the zoo or entertainers in the circus ring. Indeed, these human perceptions and customs are so self-evident they need no further elaboration.
Taken as a whole, then, one sees that animal advocates, whether noble activists or misguided fanatics, face an uphill battle in winning over society and the legal system.
V. Looking to the Future
To this point, we have examined the historical and legal background of the “animal rights” debate, met the characters and players involved, and considered the various conflicting factors that affect the potential for and desirability of legal change. What remains, then, is a discussion about the actual goals sough by animal rights advocates.
A. Rights goals
There are many initial, intermediate, and ultimate goals that the average animal rights advocate would like to achieve. To some, the ultimate goal is simply more equitable treatment for animals, with no real more tangible meaning than that conceptual hope. Others have real tangible goals that include an end to animal experimentation, the consumption of animals by people, and perhaps an end to the domestication of different species. Still others who consider themselves animal advocates are really only concerned about the interests of some subset of animals—animals like their dog for instance. Thus, there is no end to the types of gains one might seek. For a survey of such possibilities, there are countless excellent books on the subject. For purposes of introduction, however, it seems far wiser to stick with a single, fundamental and yet highly controversial goal of the animal protection movement—legal personhood.
Rights advocates, as discussed above, recognize that to achieve any novel gains for animals requires a change in their legal classification – away from property and towards legal personhood. Personhood would give animals standing in court to assert their rights, both those that may exist currently under the laws in the form of anti-cruelty statutes and those that may evolve under the common law. [ lxxxvi ]
One way to abrogate the property status of animals, thereby conferring some aspect of personhood, without totally dismantling the current system of animal ownership would be to divide that ownership into its legal and equitable components. Such a division is common in title to real property and the ownership interests of trusts. At its most fundamental level, the legal interest holder is the person with legal title to the property – the record owner with the ability and responsibility to control the property. Common examples of legal owners are the grantor of a life estate with a reversion or the trustee of a trust. Conversely, the equitable title holder – the holder of the life estate or the beneficiary of the trust – is the person deriving benefit from the property without having control over the property’s disposition.
Such a division allows the ownership interest in property to be held by multiple people in different capacities. In the context of animal rights, recognizing animals’ equitable interest in themselves – equitable self-ownership – could transform them from pure legal property into pseudo-persons capable of enjoying greater legal protections and more importantly holding legal interests that they could enforce in a court of law. Humans, on the other hand, would then retain legal title to the animals, leaving that person both the ability to use that animal and the responsibility for its care.
The creation of this new legal classification of animals could resolve the standing obstacles to the enforcement of current laws – giving Yoon, Alex, or even Luke the ability to sue for their mistreatment – as well as pave the way for more innovative and progressive protectionist laws. At the same time, it is a far less radical step than completely dismantling the current legal status of other species and works as a balancing tool between the competing interests of man and beast. [ lxxxvii ]
Such a subtle approach is, in a very real way, a form of new welfarism. More importantly, one could view recent changes to the law as a sign of such subtle change. Several years ago, Boulder, Colorado—locally known as ten square miles surrounded by reality—enacted a local ordinance to change the legal title of pet “owner” to pet “guardian” to reflect the special status of animals as property. [ lxxxviii ] Though Boulder faced significant ridicule and scrutiny, its lead has subsequently been followed by several other municipalities. [ lxxxix ] While such changes have not resulted in a substantive change in the legal classification or treatment of animals, it would be overly simplistic to call such reforms nothing more than semantics. Similarly, trust law increasingly recognizes the interests of pets whose owners wish for them to be cared for after death. The uniform probate code as well as the probate codes of several states expressly recognize “pet trusts”, under which Spike or Fido or Luke can be the beneficiary of a trust. More importantly, appointed third persons, humans naturally, can enforce the terms of the trust to ensure that the trustee actually administers the trust in the best interests of the animal. [ xc ] The Uniform Trust Code, recently drafted and being considered in many states, goes a step further and grants pet beneficiaries the classification of legal person for the limited purpose of serving as a beneficiary under a trust. [ xci ]
B. International perspectives
Because of the origin of the author of this article, the preceding pages have concentrated on American society and American law. It would be a mistake, however, to consider animal protection a strictly American dilemma. Indeed, other countries have been more willing to embrace some notion of animal rights. New Zealand, for example, enacted the Great Ape Project several years ago. That law worked a fundamental shift in the country’s legal system by extending basic rights to humanity’s closest evolutionary relatives. Now, under New Zealand law, these animals now possess three basic guarantees: the right not to be deprived of life, not to suffer cruel treatment, and not to be subjected to medical or scientific experimentation. Notice that each right is a negative one, a right to be free from something, rather than any positive rights. The world’s reaction to the law was decidedly mixed, but to date no other countries have enacted similar laws. Moreover, New Zealand has not expanded these animal rights any further.
Germany, by contrast, recently wrote a very broad promise of animal rights into its constitution, though the real significance of the amendment is unclear. After years of debate, both chambers of the German parliament agreed to include mention of animal rights in the country’s governing instrument. There is no specific language explaining what this means. However, shortly after its passage in the lower house of the German parliament, a BBC article speculated that “The addendum is expected to lead to new legislation limiting the testing on animals of products like cosmetics and mild pain relievers.” [ xcii ] Perhaps ironically, after years of debate, the measure passed after a court decision strikingly similar to the City of Hialeah case decided by the United States Supreme Court. [ xciii ] speculated that “Thus, what effect such language will have on the daily lives of German animals remains to be seen. How will fundamental protections for animals mesh in a country known for its meat products? Similarly, Switzerland several years ago declared animals were no longer property. Despite this assertion, the practical status of animals within the country remains substantially the same.
The European Union, too, has gotten into the act. Many European countries have signed onto the “pet protection treaty”, the basic tenets of which are that:
1) Nobody shall cause a pet animal unnecessary pain, suffering or distress; and
2) Nobody shall abandon a pet animal. [ xciv ]
While mostly aspirational in seeking to elevate the welfare of animals, it does provide some substantive regulations, such as prohibiting the sale of an animal to anyone under sixteen years of age. [ xcv ] Similarly, the Convention for the Protection of Animals during International Transport and the more recent Directive on the Protection of Animals during Transport seek to establish minimum safeguards for animals transported in Europe. [ xcvi ] Indeed, across Europe animal rights is a burgeoning topic for social debate. In Slovakia, “ Sloboda Zvierat” was formed in 1992. [ xcvii ] In Poland, animal advocates have “Fundacji Viva!”, a Polish version of the VivaUSA!. [ xcviii ]
Asia, too, has sought to increase protections for animals. India provides an example of a country with a longstanding tension like that potentially building in Germany. India is the birthplace of some of the most animal-friendly religions in the world. Indeed, Hinduism, Jainism, and Buddhism all contain important threads teaching respect and protection for all animal life. To these religions, humanity is just a link in a much greater chain of existence. Ghandi, known for his work and compassion for humans, was also a quiet but dedicated animal advocate. Indeed, these philosophies have, in part, carried through into Indian law with several important protectionist laws. The Indian constitution itself specifically protects animal life. Yet, even here, these protections fall short of conferring real rights upon animals. More importantly, the Indian ideal falls well sort of its goal and may in fact be in retreat. Home to significant animal exploitation and exportation, including the mistreatment of cows – sacred creatures to the Hindu religion – the country is also being inundated by Western culture and its attendant treatment of animals. Even some Buddhists, known for their vegetarianism, have repudiated their tradition for a meatier diet. Moreover, just recently the highest court in Israel banned the production of fois gras (goose liver) by forced feeding as being violative of the country’s laws against cruelty to animals. [ xcix ]
Of course not all foreign countries are so generous to animals. In many countries both man and beast are treated far worse than in the United States. The point to be made, however, is that the animal protection question is a global one not localized to any state, region, or country. More importantly, as alluded to in the discussion of international economics, changes made by one country to its animal laws will likely affect the well-being of animals in other countries. [ c ]
C. Public Awareness
One might consider an important objective of the animal rights movement already achieved—increased public awareness. Animal rights organizations have helped prompt reforms at several fast food companies and recently a national grocery store announced plans for new minimum humane treatment standards for all of the meat it sells. [ ci ] In addition, major corporations are taking positions on animal issues [ cii ] and major educational institutions are working towards developing alternatives to animal testing. [ ciii ]
Just as introductions rarely represent true beginnings, neither do conclusions represent the end of the story. Rather than providing closure, conclusions are often, looked at in another way, simply introductions to another story. Such is the case here. While animal rights as theory already has a significant history, animal rights as a vehicle for legal change is just taking root. In countries around the world changes in the legal status of other animals is already underway and several localities in the United States are beginning the slow process of fundamental change. The question is no longer whether it makes sense to debate the place of animals in our society. Rather, the issue has already been raised. The question now is how that debate should be conducted and how the questions raised should be resolved.
[i] Such stories include tales of liberation raids by the Animal Liberation Front or People for the Ethical Treatment of Animals’ “I’d Rather go Naked than Wear Fur” campaign. See http://www.peta.org for the latter.
[ii] See, e.g. , Koko Foundation, http://www.koko.org/foundation/ ; USA Today, Labs Curtailing Use of Live Animals , http://www.usatoday.com/news/science/2002-11-20-lab-animals_x.htm ; CNN.com, “Siegfried and Roy” Show in Doubt after Mauling , http://www.cnn.com/2003/SHOWBIZ/10/05/roy.attacked/index.html ; CNN.com, Athens Accused of Killing Strays , http://www.cnn.com/2003/WORLD/europe/10/01/athens.dogs.reut/index.html ; CNN.com, Dog DNA Reveals Man’s Link with Best Friend , http://www.cnn.com/2003/HEALTH/09/25/dog.genetics.ap/index.html .
[iii] Beastly Behavior?: A Law Professor Says It's Time to Extend Basic Rights to the Animal Kingdom, Wash. Post, June 5, 2002, at C-01, William Glaberson, Legal Pioneers Seek to Raise Lowly Status of Animals, N.Y. Times, Aug. 18, 1999 at A-1.
[iv] Janice Newmann, Legal Beagles , Chicago Tribune, July 28, 2002; see also Ambuja Rosen, All Client Great and Small , Student Lawyer 29 (Dec. 1998).
[v] The Royal Society for the Prevention of Cruelty to Animals was founded in 1824. Not long after, its American counterpart came into being. Yet, even before there was a United States, America’s first animal cruelty statute was passed in the Massachusetts Bay Colony in 1641. Beth Ann Madeline, Cruelty to Animals: Recognizing Violence Against Nonhuman Victims , 23 U. Haw. L. Rev. 307, 309 (2000).
[vi] Ruth Harrison, Animal Machines (1964).
[vii] Peter Singer, Animal Liberation (1975).
[viii] Peter Singer, Animal Liberation 6 (2d ed. 1991).
[x] See M. Varn Chandola, Dissecting American Animal Protection Law: Healing the Wounds with Animal Rights and Eastern Enlightenment , 8 Wis. Envtl. L.J. 3, 18 (2002); Ruth Payne, Animal Welfare, Animal Rights, and the Path to Social Reform: One Movement’s Struggle for Coherency in the Quest for Change , 9 Va. Soc. Pol’y & L. 587, 588 (2002).
[xi] See footnotes 32-33 and surrounding text.
[xv] E.g. , St. Francis of Assisi. For an account of St. Francis’ life, see Roger D. Sorrell, St. Francis of Assisi and Nature (1998).
[xvii] The objection of some western religions to teaching evolutions (or the exclusion of creationism teaching) is perhaps the best example.
[xxv] A list of such species can be found at the Humane Society of the United States’ website: http://www.hsus.org/ace/11428
[xxvi] Huntington Life Sciences, http://www.huntingdon.com/hls/EthicalIssues/AnimalNumbers.html .
[xxvii] The New Lexicon Webster’s Dictionary of the English Language (1989).
[xxviii] Bernard E. Rollin, Animal Rights and Human Morality 111 (1992).
[xxix] Id. at 110–111.
[xxx] Id . at 117.
[xxxi] Id . at 116.
[xxxii] Gary L. Francione, Animal Rights and Animal Welfare 46 Rutgers L. Rev. 397, 405 (1996).
[xxxiii] Donald N. Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles are Required , 34 Fam. L.Q. 441, 453 (2000).
[xxxiv] Daniel A. Farber, Environmental Litigation After Laidlaw , 30 Envtl. L. Rep. 10516, 10517 (2000).
[xxxv] Ass’n of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 153 n.1 (1970).
[xxxvi] See Wise, Drawing the Line, supra note 10 at 31.
[xxxvii] See Christopher D. Stone, Should Trees Have Standing? Towards Legal Rights for Natural Objects , 45 S. Cal. L. Rev. 450 (1972).
[xxxviii] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) .
[xxxix] Note, Standing Upright: The Moral and Legal Standing of Humans and Other Apes , 54 Stan. L. Rev. 163, 193 (2001); see also Defenders of Wildlife , 504 U.S. at 560; Note, Standing on Shaky Ground: The Supreme Court Curbs Standing for Environmental Plaintiffs in Lujan v. Defenders of Wildlife, 38 St. Louis U. L.J. 199 (1993).
[xl] See , e.g. , Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C. Cir. 1998) .
[xli] International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U.S. 72 (1991) .
[xlii] Unless, of course, one has seen the Hyperchicken on Futurama .
[xliii] See discussion under “Rights Goals.”
[xliv] 2 Am. Dec. 264 (N.Y. 1805).
[xlv] 103 Eng. Rep. 1127 (Q.B. 1707).
[xlvi] See King James Bible, Book of Genesis 1:20–25.
[xlvii] Gary L. Francione, Animals, Property and Legal Welfarism: “Unnecessary” Suffering and the “Humane” Treatment of Animals , 46 Rutgers L. Rev. 721, 733 (1994).
[xlviii] Id .
[xlix] For a more detailed discussion of animals status as property, see Gary L. Francione, Animals, Property and the Law (1995); see also Steven M. Wise, The Legal Thinghood of Nonhuman Animals , 23 B.C. Envtl. Aff. L. Rev. 471 (1996).
[l] E.g. Colo.Rev.Stat. § 18-9-202 (providing both misdemeanor and felony penalties for cruelty to animals).
[li] David S. Favre & Murray Loring, Animal Law 123-143 (1983).
[liii] 7 U.S.C. § 2131 et seq .
[lv] Tenn. Valley Auth. v. Hill , 437 U.S. 153 (1978).
[lix] For a more detailed description of Alex, see Steven M. Wise, Drawing the Line: Science and the Case for Animal Rights 87 – 112 (2002).
[lx] Martha Nussbaum, Animal Rights: The Need for a Theoretical Basis , 114 Harv. L. Rev. 1506, 1506-07 (2001).
[lxii] Francione, Animals, Property and the Law supra 18.
[lxv] Francione, Animals, Property and the Law supra note 34 at 18.
[lxvi] Laura G. Kniaz, Animal Liberation and the Law: Animals Board the Underground Railroad , 43 Buff. L. Rev. 765, 793 (1995).
[lxvii] Professor Wise, for example, uses a statistical hierarchy in his book Drawing the Line to rank the rights-worthiness of various animals from honeybees to his own son.
[lxix] Tom Regan, Defending Animal Rights 11 (2001).
[lxxii] Gary L. Francione, Animal Rights and Animal Welfare , supra note 18 at 397.
[lxxiii] Francione, Rain Without Thunder, supra note 46 at 36–37.
[lxxviii] David R. Schmahmann & Lori J. Polacheck, The Case Against Rights for Animals , 22 B.C. Envtl. Aff. L. Rev. 747, 751 (1995).
[lxxxii] Wise, The Legal Thinghood of Nonhuman Animals .
[lxxxiv] Wise, Drawing the Line , supra at 10-11.
[lxxxvii] For a more detailed discussion of equitable self-ownership, see David Favre, Equitable Self-Ownership for Animals , 50 Duke L.J. 473 (2000).
[xc] Rebecca J. Huss, Separation, Custody, and Estate Planning Issues Relating to Companion Animals , 74 U. Colo. L. Rev. 181 (2003), available at : http://www.animallaw.info/articles/arus74colorev181.htm ; Richard A. Faler, Pet Trust: A Last Will and Testament for You and Your Pet (1998).
By Erik Marcus
The term “animal rights” resists unambiguous definition since there are a number of divergent approaches to the topic, and much of the rhetoric commonly associated with animal rights actually has nothing to do with rights at all. On top of that the term invites tricky questions regarding which animals have rights, and the particular rights to which they’re entitled. Generally speaking, though, animal rights consists of a variety of arguments that draw the line against using animals for food, cosmetics testing, fur, circuses, and so forth.
Before we explore the intellectual underpinnings of animal rights, let’s look at animal welfare, which is a vastly simpler concept and predates animal rights philosophy by centuries. Animal welfare was a key principle guiding the humane movement of the 1800s; the RSPCA (Royal Society for the Prevention of Cruelty to Animals) was founded in 1824 and brought these welfare principles into mainstream Western culture. The core idea guiding the humane movement was that it’s okay to use animals for food, entertainment, transportation, medical research, whatever—but if animals are to be used for purposes like these, they shouldn’t subjected to cruelty or avoidable harm. Humane organizations also sought outright bans on the most despicable uses of animals, such as fox hunting and animal fights—but it was the reduction of harm rather than the abolition of exploitation that guided the work of these groups.
A significant number of animal advocates today vehemently object to anything that smacks of welfarism, believing that this rhetoric legitimizes using animals in indefensible ways. But condemning welfare-based thinking is remarkably short-sighted. However much you and I may wish to live in a world where animals are never exploited by people, the reality is that there is currently a lot of money to be made by using animals for food and other purposes. We can’t expect people whose income is based on animal use to carefully contemplate the nuances of animal rights. As Upton Sinclair memorably observed, “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”
So the great virtue of animal welfare rhetoric is that it requires nothing in the way of protracted thinking. What’s more, its demand to eliminate cruelty whenever possible is so tiny that it renders a good-faith rebuttal impossible. It’s therefore easy to get most animal-exploiting businesses to at least halfheartedly accept a welfare perspective geared toward eliminating the worst cruelties. And this in turn can lead to dramatic reductions in the number of animals exploited by humans, and the suffering each of these animals endures.
Why a Welfare Approach Benefits Animals
Regardless of whether we are talking about a farm, a zoo, or a laboratory, providing truly good animal welfare requires a shocking level of added expense. So whenever animal exploiters are persuaded to take animal welfare seriously, production costs often rise, the total number of animals raised declines, and the cruelest handling methods are reevaluated and often banned.
Let’s examine how this dynamic plays out in regard to eggs. In the United States, cage-free eggs typically cost about 50 percent more than eggs from caged hens. And while nobody can legitimately doubt that cage-free hens suffer far less than their battery-cage counterparts, there remains ample room for welfare improvement at most cage-free farms. The vast majority of cage-free hens are kept in crowded conditions, and a great many are never allowed to venture outdoors.
Can cage-free hens be raised with truly excellent animal welfare? Absolutely. But the expense is so immense it rarely happens. I’ve visited a couple of egg farms that make minimal compromises where welfare is concerned. The hens enjoy abundant outdoor access and all-around excellent living conditions. But this level of care comes at a massive added cost. The farmers typically sell these eggs for about quadruple the price of factory farmed eggs, and even at this price they barely scrape by financially. What’s more, even here, serious welfare problems can still remain unaddressed.
Nearly all the cage-free farms I’ve encountered purchase the very same high-yielding hen varieties used in factory farms. These hens are predisposed to health problems that do not afflict less-productive heirloom breeds. Additionally, the male counterpart of each cage-free layer hen was very likely ground up alive at the hatchery (he is certainly nowhere to be found at the farm). And every single commercially-raised cage-free hen is destined for slaughter before middle age, as her egg yields decline.
Just as cage-free eggs produced under varying welfare standards are widely available, you can likewise find beef, pork, chicken, and milk that don’t come from factory farms. But, as we have just seen with layer hens, a careful look at enhanced welfare meat and milk generally reveals great room for improvement as well as certain troubling practices that money cannot remedy.
Since no system of raising animals for food is perfect, some animal rights advocates sarcastically refer to higher welfare animal foods as “happy meat,” and assert that they offer no meaningful reduction of cruelty over the worst factory farmed meat. This is a misguided position, as it’s both patently false, while potentially crippling to an entire arm of the animal protection movement.
Animal advocates would therefore do well to understand that as long as people insist on eating meat, we should always communicate that there is an ethical obligation to ensure that the animals involved won’t suffer needless cruelty. After making this point, it’s then easy to demonstrate that the overwhelming majority of meat produced by higher-welfare operations still comes from animals who suffered in numerous ways, even if they were subjected to less cruelty than they would face at a conventional factory farm.
Truly good animal welfare is not only extraordinarily expensive, it’s difficult to verify. Higher welfare farms may therefore have an irresistible temptation to reduce expenses by reneging on the welfare standards they’ve promised. Chipotle Mexican Grill learned this the hard way in January of 2015, when it had to stop offering pork at hundreds of its restaurants because one of its largest suppliers wasn’t adhering to the welfare standards it was under contract to provide.
So while it’s certainly possible to eat meat, milk, and eggs from animals who have received decent levels of care, it’s much more inconvenient and expensive than you might think. That said, to whatever extent we can convince die-hard omnivores to embrace alternative producers, we can reduce both cruelty and the total amount of non-vegan food consumed.
Moving from Welfare to Rights
Advocating for animal welfare—or, at the barest of minimums, not criticizing animal welfare improvements—is of course only the starting point, not the end point, of effective animal advocacy. If we are to have any hope of ending the suffering of tens of billions of farm animals each year, animal rights (not just animal welfare) must enter into the discussion. Effectively advocating for animal rights requires some careful thinking and a solid philosophical basis.
The foundation for rigorous thinking about animal use was laid in 1975, with the publication of Peter Singer’s book Animal Liberation. While today Singer is commonly regarded as the father of the animal rights movement, ironically Animal Liberation did not make a concerted attempt to argue that animals in fact have rights. Instead, the book took a philosophical framework called utilitarianism, first devised by Jeremy Bentham (1748-1832), and extended it to the world of human interactions with animals.
Utilitarianism’s guiding belief is remarkably simple: moral behavior seeks to maximize joy and minimize suffering. Presciently, Bentham did not exclude animals from utilitarianism even if in his best-known work he relegated the question of animals to a single footnote:
The question is not, Can they reason? nor, Can they talk? but, Can they suffer?
To be clear, Bentham did not offer a philosophical basis for assigning rights—either to people or to animals. He merely created a framework for a standard of moral behavior that seeks to maximize happiness and minimize harm.
Peter Singer realized that Bentham’s utilitarian approach could be extended for the sake of evaluating how animals might ethically be used by humans. Singer began by conceding that there are certain undeniable pleasures associated with animal exploitation—take, as one example, the savory flavor of meat enjoyed by millions. But to declare meat-eating as ethically acceptable, we must weigh the sensual enjoyments it provides against whatever miseries the animals suffer. Singer convincingly demonstrated in Animal Liberation that whenever humans make use of animals, the pleasures enjoyed by humans are likely minuscule compared to the sufferings inflicted upon animals.
While utilitarianism opens the door to a thoughtful dialog about how humans can ethically make use of animals, it is also hindered by some obvious limitations. The most notable of these constraints is that, by reducing everything to a calculation of potential joy vs. suffering, the intrinsic value of the animal’s life is not at all accounted for. For instance, utilitarian thinkers may offer no objection to the slaughter of an animal, if that animal lived a decent life and was killed instantly and without any suffering. From this perspective, humans have gained the benefit of the animal’s flesh and hide, but there’s no suffering against which these benefits must be weighed.
Fortunately, Singer didn’t put all his eggs in the utilitarian basket. Animal Liberation popularized a second concept—called speciesism—that opened the door to considering animal rights.
Speciesism is an easily understood label that offers a powerful avenue of discussion for animal advocates. Cut from the same cloth as racism and sexism, speciesism is the act of making unfair judgments about a being based on her species, rather than on her innate capacities to think, feel, or suffer. So somebody concerned with speciesism might ask why it might be considered acceptable to test cosmetics on rats, but not on cute furry bunnies. Or he might wonder why it’s considered okay to kill pigs and cows for food, but not dogs and horses. In examples like these, it’s apparent that these animals are comparably sentient, and possess similar capacities for pain and pleasure.
Speciesism can also serve as the basis for coherent reasoning concerning the divide between people and other animals. If it’s not okay to lock a person in a tiny cage and ultimately slaughter him, why would it be acceptable to do the same to a breeder sow or a battery hen? In all cases, it’s clear that the being in question is capable of suffering enormously.
It’s likely that most of the animal cruelty and slaughter that exists today can be linked to speciesist beliefs. So including speciesism in discussions related to animal exploitation is a powerful way to start people thinking about difficult and important questions. That said, it’s probably worth considering that some speciesistic beliefs may in fact protect some animals, even if these beliefs cannot be logically defended. I tend to think that any time a group of animals gains protection it’s a good thing for all animals—if cute fuzzy lambs are saved today it can make people more receptive to extending their concern to less adorable animals tomorrow. But I’m just another activist with an opinion, and I’m not confident that I’m right and I have no data to back me up on this point.
Tom Regan and the Subject of a Life
Almost a decade after the publication of Singer’s Animal Liberation, another philosopher, Tom Regan, stepped onto the scene with his 1983 book The Case for Animal Rights. Regan’s book offered an analysis of animal rights that bypassed utilitarian thinking in favor of focusing on animal consciousness itself. The Case for Animal Rights is hard-core academic philosophy, and is likely too challenging for the mainstream reader. So in 2003 Regan revisited the topic with a book titled Empty Cages, which is far more accessible and offers a superb introduction to his non-utilitarian approach to animal advocacy.
To Regan, gauging the degree that animals suffer and humans benefit is a distraction. What matters is simply whether exploited animals have sufficient awareness to be the “subject of a life.” If some animals indeed possess this level of sentience, then taking their lives, or depriving them of life in a natural setting, is a violation of their rights regardless of any benefits derived by humans.
The concepts advanced in Singer’s and Regan’s writings helped open the door to “legal personhood,” an approach to animal rights that shows great promise when it comes to winning new legal protections for animals.
Here, “person” is not synonymous with “human,” but instead indicates that an entity—living or not—is important within the legal system. The Nonhuman Rights Project has embraced this approach to argue that being autonomous and self-determining is a sufficient condition for legal personhood, at least for the purpose of gaining freedom through a writ of habeas corpus. It’s probably already apparent to most people that primates are so obviously endowed with human-like levels of sentience that they should be granted added protections under the law compared to many other animals. Years of effort on this front suddenly paid off in April of 2015, when a New York court recognized two chimpanzees could be considered “legal persons” and ordered a university to come into court and justify keeping keep them captive for the sake of medical experiments.
Future court cases will probably extend legal personhood to include a wide diversity of species. From crows who can understand analogies to the remarkable ability of dolphins to display empathy, it seems that the more you learn about animals the more species may fall under the umbrella of being entitled to legal personhood. In fact, an entire book—Drawing the Line, by the attorney Steven M. Wise—is devoted to exploring legal personhood and evaluating which animals merit protection within this sphere.
While the thought leaders within the animal rights movement have historically been philosophers, the study of animal personhood has primarily been led by lawyers. That’s perhaps because personhood may well be the most pragmatic and strategically important concept to arise within the animal protection movement. As Steven Wise has said, “If you want to improve the philosophical status of animals you are best off talking to philosophers, but if you want to advance the legal status of animals then you should talk to lawyers.”
Philosophy is tedious and challenging, and only the tiniest portion of people ever wades deeply into it. But even a rudimentary understanding of the core animal rights and animal welfare concepts can greatly increase your advocacy abilities. A familiarity with animal rights and welfare can guide you to the most effective forms of activism, while also enabling you to choose the talking points that are most likely to persuade others.
Since people have such a wide range of beliefs about the moral status of animals, the most effective animal advocates use both rights and welfare rhetoric. It’s easy to inject the primary concepts underlying animal rights and welfare into a conversation without turning things into a graduate school philosophy debate. For instance, any conversation pertaining to animal exploitation can touch on issues like:
- Welfare considerations: “Might it be easier to avoid animal products altogether than it is to pay the extreme amount of money and attention needed to guarantee excellent levels of housing and care?”
- Utilitarian-based considerations: “Is it okay to raise and slaughter an animal, often under the harshest conditions imaginable, simply because we enjoy the taste of flesh?”
- Speciesism: “If it’s not acceptable to kill and eat your dog, how then can we justify the slaughter of pigs for bacon?”
- Rights based on legal personhood and subject-of-a-life: “Do we have any right to confine or kill an animal who is aware she exists, and who plainly wants her life to continue?”
You can mix and match the above talking points, based on how receptive the listener is to each topic. Keep in mind that even people who ridicule rights arguments are typically receptive to welfare arguments. And welfare arguments are highly effective at getting people to reduce their consumption of animal products, while shifting purchases to more ethical producers.
It’s also worthwhile to recognize that the choice and quality of your arguments is often of secondary importance to the style of communication you embrace. Effective advocacy is more about winning people over than defeating people in an argument. You want to encourage people to try more vegan foods at every turn, and to recognize that embracing a compassionate lifestyle is easy and satisfying. Nothing aids in these efforts more than communicating in a way that is friendly, non-judgmental, and well-informed. And of course, one of the most effective routes to animal protection has nothing to do with philosophy at all, but rather involves showing people the remarkable variety of delicious foods that are available on a vegan diet.
A grasp of the concepts presented in this essay can aid your animal protection efforts in numerous ways. But a little animal rights philosophy goes a long way, and when it comes to actually winning rights for animals there are diminishing returns to studying this topic. Once you’re acquainted with the core concepts supporting animal rights and welfare, it’s wise to shift your attention to studying the strategies and tactics that have delivered the greatest gains for animals.
The best animal advocates are always on the lookout for low-hanging fruit—comparatively easy wins that will result in the protection of large numbers of animals. There are a number of superb books on animal advocacy campaigning that can help you identify the most powerful sorts of activism. These books include:
You can find corners of the Internet where people vehemently argue over different approaches to animal rights rhetoric and activism. But getting all animal advocates to agree on the single best way forward isn’t important and may not even be desirable. What matters is whether we are collectively accomplishing as much for animals as possible. Perhaps the best philosophy, then, is the one that results in the most animals being spared from suffering and from slaughter. Looked at this way, gaining a familiarity with animal welfare and rights philosophies becomes the jumping-off point to where the real work begins.
My deepest thanks to Peter Singer, Paul Shapiro, and Steven Wise for reading and commenting on drafts of this essay. Any mistakes or misinterpretations here are mine alone.