Authors Citing this Paper: Francione (Gary)
- In this essay I respond to various critics who argue that the property status of animals is not an insurmountable obstacle to improving animal welfare and that animal welfare regulation is an effective way of moving incrementally toward the recognition that nonhumans have more than extrinsic or conditional value.
- In my 1995 book, Animals, Property, and the Law, I argue that animal-welfare laws do not provide any significant protection to nonhuman animals because nonhumans are the property of humans3. Animals are things that we own and that have only extrinsic or conditional value as means to our ends. We may as a matter of personal choice attach a higher value to our companion animals, such as dogs and cats, but as far as the law is concerned, even these animals are nothing more than commodities. As a general matter, we do not regard animals as having any intrinsic value and we protect animal interests only to the extent that it benefits us to do so.
- We claim to take animal interests seriously from both a moral and legal perspective, which is why we have anti-cruelty and other animal-welfare laws in the first place. We purport to balance human and animal interests, but because animals are property, there can be no meaningful balance. Animal interests will almost always be regarded as less important than human interests, even when the human interest at stake is relatively trivial and the animal interest at stake is significant. The result of any supposed balancing of human and nonhuman interests required by animal-welfare laws is predetermined from the outset by the property status of the nonhuman as a "food animal," "experimental animal," "game animal," et cetera.
- Although we supposedly prohibit the infliction on animals of "unnecessary" suffering, we do not ask whether particular animal uses are necessary even though most of the suffering that we impose on animals cannot be characterized as necessary in any meaningful sense. Rather, we ask only whether particular treatment is necessary given uses that are per se not necessary. We look to the customs and practices of the various institutions of exploitation and we assume that those involved in the activity would not inflict more pain and suffering than required for the particular purpose because it would be irrational to do so, just as it would be for the owner of a car to dent her vehicle for no reason.
- For example, although it is not necessary for humans to eat meat or dairy products and these foods may well be detrimental to human health and the environment, we do not ask about the necessity per se of using animals for food. We ask only whether the pain and suffering imposed on animals used for food go beyond what is regarded as acceptable according to the customs and practices of animal agriculture. To the extent it is customary for farmers to castrate or brand farm animals, both very painful activities, we regard such actions as "necessary" because we assume that farmers would not mutilate animals for no reason.
- The result of this framework is that the level of care required by animal-welfare laws rarely rises above that which a rational property owner would provide in order to exploit the animal in an economically efficient way. Because animals are property, we consider as "humane" treatment that we would regard as torture if it were inflicted on humans.
- In my 1996 book Rain Without Thunder: The Ideology of the Animal Rights Movement I argue that there are important theoretical and practical differences between the animal-rights and animal-welfare positions and that welfarist regulation intended to make animal treatment more "humane" will, for the most part, do nothing but make animal exploitation more efficient. Welfarist regulation, I maintain, does not recognize or protect the inherent value of animals and will not lead in some incremental way to the abolition of animal exploitation. For example, the federal Humane Slaughter Act, which supposedly requires the "humane" slaughter of nonhumans for food purposes, prohibits suffering only to the extent that it ensures worker safety, reduces carcass damage, and provides other economic benefits for humans. It would, however, be an absurd use of the word to characterize any slaughterhouse as "humane."
- To the extent that animal advocates seek protection for animals that exceeds what is necessary to exploit them for a particular purpose, the property status of nonhumans and the political compromise that is required invariably result in regulations that do little — if anything — to affect adversely the interests of human property owners or to improve the treatment of nonhumans. The primary effect of these measures is to make the public feel better about animal exploitation, which actually may result in a net increase of animal suffering through increased use. A central thesis of Rain Without Thunder, as well as my later work, is that, if animal interests are to be morally significant, we must accord to nonhumans the basic right not to be treated as property, and this requires that we seek to abolish, and not merely to regulate, institutionalized animal exploitation.
- A number of my critics have argued that, although we do treat animals badly, there is nothing inherent in the property status of animals that would prevent us from changing the law to require that animals be accorded better treatment and so animal advocates ought to pursue incremental improvements in animal welfare. Although I maintain that we cannot justify the property status of nonhumans irrespective of how "humanely" we may treat them — just as we cannot justify human slavery even if it is "humane" — I certainly agree that we could treat animals better than we do and stated so explicitly in Animals, Property, and the Law4. The status of nonhumans as property, however, militates strongly against significant improvement in our treatment of animals, and animal welfare will do little more than make animal exploitation more economically efficient and socially acceptable.
- There can be no doubt that the animal-protection community in the United States — and, indeed, throughout the world — has in the years since I wrote these books achieved a greater degree of economic power and social prominence than at any point in history. Therefore, if my critics are correct, and the property status of nonhumans is not as significant an obstacle as I have claimed, it would seem that there should be some evidence of progress that does not fit the model that I have described. That is, there should be evidence of animal protection that goes beyond what is required for efficient exploitation, reflecting at least a nascent recognition of the inherent value of animals as opposed to their exclusively extrinsic value as property. Instead, the events of the past decade or so reinforce the view that the property status of nonhumans is a greater obstacle than my critics and the animal-protection movement have recognized or appreciated.
- Part II of this article examines whether animal welfare in the United States has moved us closer to recognizing the inherent value of nonhumans and concludes that it has not. This is not a complete survey of federal and state law or of changes that have occurred through the voluntary action of animal users; rather, it focuses on those developments that animal advocates appear to regard as most significant.
- Part III discusses some general reasons why the property paradigm militates against better treatment of nonhumans. These remarks are made primarily in the context of responding to criticisms of my views made by Cass Sunstein.
- Part IV discusses the false dichotomy promoted by my critics that we must either pursue traditional welfarist regulation or sacrifice nonhumans to the "Utopian" goal of abolition that will not be achieved for many years, if ever.
- Part V offers some observations on the field of "animal law" as it has emerged in the past decade.
- Part VI addresses the view advanced by some in the legal community that we ought to treat certain animals, such as great apes, in a different manner based on their cognitive similarities to humans.
Footnote 1: Taken from "Francione (Gary) - The Abolition of Animal Use Versus the Regulation of Animal Treatment".
- Section I.
- Most footnotes omitted.
Footnote 4: In the Introduction to Animals, Property, and the Law, I state:
- Throughout this article, I use "nonhuman" and "animal" interchangeably, but it should not be forgotten that humans are animals as well. In addition, I use "animal who" rather than "animal that" to emphasize that nonhumans are not objects, as implied by our reference to them as "it."
"I do not maintain that characterizing sentient beings as property necessarily means that those beings will be treated exactly the same as inanimate objects or that property can never have rights as a matter of formal jurisprudential theory. For example, although slaves were, for some purposes, considered 'persons' who technically held certain rights, those rights were not particularly effective in providing any real protection for slaves. We could decide to grant certain rights to animals while continuing to regard them as property. The problem is that as long as property is, as a matter of legal theory, regarded as that which cannot have interests or cannot have interests that transcend the rights of property owners to use their property, then there will probably always be a gap between what the law permits people to do with animals and what any acceptable moral theory and basic decency tell us is appropriate."
Text Colour Conventions (see disclaimer)
- Blue: Text by me; © Theo Todman, 2019
- Mauve: Text by correspondent(s) or other author(s); © the author(s)