Review of Animals, Property and the Law by Gary L. Francione
Layard (Antonia)
Source: Environmental Values, Vol. 7, No. 1 (February 1998), pp. 118-120
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  1. Gary Francione's Animals, Property and the Law, is evidently a labour of love, based on extensive research, tying together the author's expertise as litigator and academic. Rejecting 'speciesism' and adopting Tom Regan's theory of animal rights1, Francione’s objective is to 'examine the legal system as it affects animals, to assess whether the current legal standards reflect these emerging and evolving moral concerns and, if not, why'. In particular, he aims to go beyond existing descriptive analysis of animal welfare law, and to combine it with theoretical analysis.
  2. Inevitably then, Francione’s success at meeting these objectives is closely linked to his ability to develop the theory on which his analysis is based. He calls this theory 'legal welfarism', consisting of four basic and interrelated concepts.
    1. Animals are characterised as the property of human beings.
    2. This status as property justifies the treatment of animals exclusively as means to human ends.
    3. Animal use is 'necessary' whenever that use is part of a generally accepted social institution.
    4. ‘Cruelty’ is generally only identified if it inhibits or frustrates animal exploitation.
    In identifying the prevailing trends in our treatment of animals, legal welfarism appears to encapsulate modem practice very well.
  3. The difficulty arises, however, when Francione attempts to put something in its place, for he does not describe how Regan's theory of animal rights2 might be implemented in practice, a contribution most lawyers would expect him to make, in particular, Francione cites Regan to submit that animals should not have equal rights with humans, intertwining this with a statement that they do not have the same rights. Clearly these are distinguishable and yet this complex interrelationship is dealt with only very briefly.
  4. The focus on equal rights is important since the book leaves us with the unappetising realisation that speciesism is alive and well. This is evident from Dudley & Stephens, the classic text-book case, where two starving sailors killed a third to sustain themselves. Francione is concerned that the court never discussed the interests of the turtle the men had eaten early on their voyage, and whether its death was 'necessary' to the same degree as the sailor's. Francione's solution to this problem, that animal interests should be secured by animal rights3, avoiding the balancing inherent in 'welfarism', does not answer this conflict. If rights are not absolute (a position he appears to accept) some balancing (however this is defined) must take place. If the balancing process is not to be skewed in favour of humans, his main criticism of welfarism, then do animals not have 'equal' rights? Or could an animal's right to life be subjugated to a starving sailor, but not to potential gains in food technology in laboratory experiments? While arguing persuasively that the current balance is unacceptably skewed, Francione does not indicate which balances, if any, could be struck. What should have happened to the turtle?
  5. In fact, the key focus here is justification, and even if Francione does not persuade every reader that animals should have rights, he presents a strong argument that prohibiting 'unnecessary cruelty' or 'inhumane treatment' can ring very hollow if every dollar earned, or experiment conducted, is sufficient excuse to carry out the treatment required. As he submits, his examples amply demonstrate that judicial intervention is often strongest when the treatment or practice does not increase coffers or expand knowledge. We appear to resent waste more than cruelty or pain, and Francione raises a powerful argument that some cruelty or inhumanity should be outlawed regardless of the perceived benefits it may bring. Even if we do not accord animals legal rights, we could concern ourselves with our own behaviour.
  6. Perhaps the greatest drawback to this book, however, is that it is so one-sided. Francione, eschewing a text-book approach, does not describe the protective decisions or the far-sighted legislation. Brief mentions pepper the book, but this surely merits a chapter of its own. If there is simply insufficient material to fill a chapter on 'good' laws and cases, this too should be made clear. As it is, the reader is left wondering whether any courts or legislatures are taking animal welfare seriously, and also whether Francione's legal analysis is in fact correct. While perhaps only a lawyer would wish for a model statute, clear indications of the legal reforms he has in mind would also fill this gap. Finally, the theoretical parts of the book are very repetitive, and tend to obscure the flow of the argument.
  7. In all, the book presents a dizzying overview of American statutes and case law concerned with animal welfare, together with cogent criticisms. The stories frequently speak for themselves, for example the New Jersey Court which held that high school students inducing cancer in live chickens did not needlessly mutilate or kill living creatures, deferring to a federally-funded expert report which concluded that high school studies using live animals 'helps students have sympathy for living things', or the Idaho decision which held that 'bunny baseball' where rabbits were tossed to players wielding baseball bats did not amount to unnecessary abuse of animals. Human beings, it seems, still have a great deal to learn.

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Review of Gary Francione - "Animals, Property and the Law"

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