ANIMAL RIGHTS AND ANIMAL WELFAREFootnotesFNa. Copyright 1995 by Gary L. Francione. Portions of this article are taken from a book entitled, Animal Rights and Animal Welfare: The Ideology of a Social Protest Movement, by Gary L. Francione, which is forthcoming from Temple University Press. The author gratefully acknowledges helpful comments from Doris Braendel, Anna Charlton, Priscilla Cohn and Tom Regan. Special thanks go to Stratton, Emma and Tedwyn. This article is dedicated to Bill Kunstler, a friend and neighbor, who, through his example, taught us all so very much about justice. FNaa. Professor of Law and Nicholas deB. Katzenbach Scholar of Law and Philosophy, Rutgers University School of Law--Newark. Professor Francione is also co-director of the Rutgers University Animal Rights Law Center. FN1. See generally Gary L. Francione, Animals, Property, and the Law (1995) (hereinafter Francione, Animals, Property and the Law); Gary L. Francione, Animals, Property and Legal Welfarism: "Unnecessary" Suffering and the "Humane" Treatment of Animals, 46 Rutgers L. Rev. 721 (1994) (hereinafter Francione, Animals, Property and Legal Welfarism). Animal welfarists support laws which seek to ensure that animals used in experiments are not subjected to "unnecessary" suffering, and that animals used for food are slaughtered "humanely." FN2. James M. Jasper & Dorothy Nelkin, The Animal Rights Crusade 5 (1992). FN3. Bernard E. Rollin, The Legal and Moral Bases of Animal Rights, in Ethics and Animals 106, 106 (Harlan B. Miller & William H. Williams, eds., 1983). FN4. Jasper & Nelkin, supra note 2, at 5. FN7. Susan Sperling, Animal Liberators: Research and Morality 2 (1988). FN8. Id. at 28. According to Sperling, the modern rights position is conceptually related to the antivivisection movement of the nineteenth century in that both share a fear of increasing technological manipulation of the earth and all its inhabitants. Id. FN9. Robert Garner, Animals, Politics and Morality 49 (1993). FN11. Lawrence Finsen & Susan Finsen, The Animal Rights Movement in America: From Compassion to Respect 3 (1994). FN13. American Medical Association, Use of Animals in Biomedical Research: The Challenge and the Response (1989). FN15. Letter from Susan Paris, President, Americans for Medical Progress, to Lewis Kerman, Assistant Dean, Rutgers University School of Law--Newark 1 (Apr. 7, 1994) (on file with author). FN16. Id. Apparently, AMP is concerned about the human right to own and use animals but is not concerned about other important human rights. For example, the AMP letter warns about the teaching of a "dangerous philosophy" of animal rights, as opposed to the "legitimate philosophy" of animal welfare. Id. It is, however, impossible to make such judgments about speech without making content-based discrimination that would be prohibited by the First Amendment right of free speech if a state institution or actor were trying to define speech in this manner. U.S. Const. amend. I. Indeed, the AMP letter is a warning to educators to keep particular ideas from being taught because they are "wrong" or "dangerous." That, of course, is censorship, which seems to smack of precisely the sort of dogmatism that scientists claim to reject. FN17. Letter from Susan Paris to Lewis Kerman, supra note 15, at 1. FN19. Id. at 2. Again, AMP seems to forget about the United States Constitution, which has been interpreted to require that people accused of crimes are presumed innocent until proven guilty. Similarly, the Sixth Amendment guarantees the right to counsel in criminal cases. U.S. Const. amend. VI. So, when a person is accused of "destroy(ing) research facilities," Letter from Susan Paris to Lewis Kerman, supra note 15, at 1, we assume that the person is innocent until proven guilty, and that she is entitled to a defense. AMP, however, seems upset about this arrangement, and apparently believes that people accused of these crimes are not entitled to a presumption of innocence or to counsel in criminal cases. In addition, "extremist groups" do not "cripple biomedical research with excessive regulation." Id. Extremists cannot impose any sort of regulations-- only legislators and administrative agencies can. So if AMP is concerned that extremists will hire lawyers to lobby for legal and regulatory changes, then they ought to take their fight up with the constitution, which guarantees the right to free speech and to petition government. See U.S. Const. amend I. FN20. John M. Clymer, Letter to the Editor, Phila. Inquirer, July 21, 1995, at A18. FN21. Frederick K. Goodwin, Animal Welfare vs. Animal Rights 1 (Sept. 20, 1990) (unpublished narrative manuscript to accompany slide show of same title, on file with author). FN24. Don Barnes, The Dangers of Elitism, 15 The Animals' Agenda 44, 44-45 (1995). FN25. Kim W. Stallwood, Utopian Visions & Pragmatic Politics: The Challenge of the Animal Rights Movement, Address at the National Alliance for Animals Conference (June 24, 1995) (transcript on file with author). Stallwood has apparently changed his views in light of the fact that in the 1980s, he took precisely the "divisive" posture that he now argues against. For example, Stallwood, who in 1983 was employed by the British Union for the Abolition of Vivisection ("BUAV"), declined to support the Scientific Procedures Act of 1986 as it was endorsed by welfarists because it did not contain prohibitions on particular types of experiments. See Garner, supra note 9, at 206-07. FN26. Publisher's Announcement, Journal of Applied Animal Welfare Science (1994). FN27. Preface, Humane Innovations and Alternatives (1994). This periodical is published by Psychologists for the Ethical Treatment of Animals (PSYeta). FN28. Zoe Weil, Book Review, The AV Magazine, Sept.-Oct. 1995, at 20 (reviewing Lawrence Finsen & Susan Finsen, The Animal Rights Movement in America: From Compassion to Respect (1994)). FN29. The AV Magazine, Sept.-Oct. 1995, at 18. FN30. See Beyond Animal Rights: A Feminist Caring Ethic for the Treatment of Animals (Josephine Donovan & Carol S. Adams eds. 1995). FN31. Ingrid E. Newkirk, Counterpoint: Total Victory, Like Checkmate, Cannot Be Achieved in One Move, The Animals' Agenda, Jan.-Feb. 1992, at 43-44. FN32. Finsen & Finsen, supra note 11, at 81 (quoting Alex Pacheco). FN33. Humane Society of the United States, Statements of Policy 3-4 (1994). "The HSUS contends that a rigorously applied humane approach can benefit both animal welfare and human health, without compromising either." Id. FN34. Id. at 21-22. HSUS supports humane standards for animals in every phase of animal-based food production. Id. "The HSUS supports those farmers and ranchers who give proper care to their animals." Id. at 22. "The HSUS enthusiastically supports farmers who espouse humane, ecologically sound production systems" and claims that it is morally acceptable to consume animals as long as we "eat with conscience" in accordance with principles of "humane sustainable agriculture." Id. at 30. FN35. Id. at 31. "The HSUS recognizes that welfare and responsible management of animals may, on occasion, necessitate the killing of wild life as a last resort." Id. "The HSUS also recognizes that the legitimate needs for human subsistence may necessitate the killing of wildlife as a last resort." Id. FN36. Letter from John Hoyt to Clayton Yeutter (Sept. 13, 1990), in A Common Bond, The Animals' Voice, Mar.-Apr. 1991, at 54 (emphasis supplied). FN37. The mission statement of NAVS claims that it is "dedicated to abolishing the exploitation of animals used in research, education, and product testing." Letter from Mary M. Cunniff, Executive Director, NAVS, to Gary L. Francione 1 (Oct. 3, 1995) (on file with author). NAVS never the less supports the use of animals in experiments through its support of the International Foundation for Ethical Research ("IFER"), which is funded primarily by NAVS and which shares its offices with NAVS. Cunniff is a board member of IFER. An IFER advisory board member describes an experiment in which he was involved in which rats were "euthanized by decapitation, then dissected" aboard the Columbia shuttle. Martin Fettman, Animals in Space Life Sciences Research: A Personal Perspective, Int'l Found. for Ethical Res., Summer 1995, at 6. Fettman acknowledges that "the rodents did not volunteer for the studies" but assures readers that the rodent studies represented "minimal and responsible animal use." Id. at 7. FN38. Wayne Pacelle, Wayne Pacelle, Unplugged, The Animals' Agenda, Nov.-Dec. 1994, at 28. FN39. Mark Harris, The Threat from Within, Vegetarian Times, Feb. 1995, at 62, 70 (quoting Henry Spira). FN40. See Finsen & Finsen, supra note 11, at 259. FN41. Harris, supra note 39, at 69. "Groups that supported (the Animal Welfare Act) included NAVS, PETA, the Humane Society and most other animal-rights and animal-welfare organizations." Id. FN42. Letter from David Cantor, Senior Researcher, People for the Ethical Treatment of Animals, to Louis Peluso (Nov. 27, 1995) (on file with author). FN43. Interview: Henry Spira, Found. for Biomedical Res. Newsletter, Jan.-Feb. 1993, at 4, 5-6. FN44. McDonald's Agrees to Adopt Humane Code, Animal People, Apr. 1994, at 1, 3. FN45. Memorandum from Michael Giannelli, Executive Director, Ark Trust, to Ark Trust colleagues (Jan. 2, 1996) (on file with author). FN46. Peter Singer, Animal Liberation (2d ed. 1990). FN47. Tom Regan, The Case for Animal Rights (1983). FN48. Garner, supra note 9, at 11. Although I use Regan's views in my discussion of rights theory, I do not mean to suggest that I agree with Regan's theory in all respects. There are salient differences between our approaches. FN49. J.J.C. Smart, An Outline of a System of Utilitarian Ethics, in Utilitarianism: For and Against 3, 9 (J.J.C. Smart & Bernard Williams eds., 1973). FN50. Peter Singer, Practical Ethics 12-13 (1979). FN51. Garner, supra note 9, at 27. FN53. Singer, supra note 46, at 8. FN54. Jasper & Nelkin, supra note 2, at 8. FN55. Peter Singer, Ethics and Animals, 13 Behavioral & Brain Sci. 45, 46 (1990). FN57. Singer, supra note 46, at 228. FN59. Id. The context of Singer's comments involves an examination of the argument that meat eaters actually do animals a favor by causing them (directly or through consumption demand) to come into existence in the first place. See id. Singer acknowledges that although in the first edition of Animal Liberation he rejected this view as "nonsense," see id at 228, he is now uncertain about its validity and concludes that it is difficult to deny that bringing a being into the world confers a benefit on that being as long as the being has a pleasant life. See id. This leads him to the view that it may be morally permissible to eat animals who have been raised and slaughtered humanely. See id. at 229-30. FN61. See id. at 230. Notably, Singer argues that if a being does have desires for the future or a continuous mental existence, then it would be wrong to kill that being even if the killing were painless. See id. The problem with this view is that it is inconsistent with Singer's utilitarian theory. The fact that X may have future desires may count against killing X because the frustration of X's future desires is a negative consequence for a preference utilitarian like Singer. Singer, however, cannot maintain that there is any absolute rule against killing such a being because the aggregation of consequences may militate in favor of such killing. FN62. Regan, supra note 47, at 350-51. FN63. See Singer, supra note 46, at 226 ("(O)nce we give up our claim to 'dominion' over the other species we should stop interfering with them at all. We should leave them alone as much as we possibly can.") (emphasis added). FN64. It may, of course, be questioned as to whether Singer can have even this as his long-term goal; after all, it is possible to conceive of circumstances in which applying the principle of equality would not satisfy Singer's theory of act-utilitarianism. The best result for all affected may require that we not respect the principle of equality. As an act-utilitarian, it would seem that Singer would be committed to the option that maximized intrinsic value. FN65. See Singer, supra note 46, at 233. FN66. See Regan, supra note 47, at 205-06, 208-11, 235-37. FN69. Id. at 235 ("(W)e cannot determine the inherent value of individual moral agents by totaling the intrinsic values of their experiences."). FN71. Id. at 237 ("All moral agents are equal in inherent value. . . ."). FN73. Id. at 233-34 (stating that perfectionism holds that "what individuals are due . . . depends on the degree to which they possess a certain cluster of virtues or excellences"). FN74. Id. at 235-39. This alternative theory of value avoids some of the more problematic aspects involved in the interaction between the principle of utility and the equality principle relied on by utilitarians. As long as the value of individuals is understood only in terms of intrinsic value, aggregations of consequences--and nothing else--will determine right action. This leads to many unacceptable results, such as the secret killing of innocent moral agents, as long as the killing will bring about the best aggregate consequences. FN75. For a more extensive definition of "subject-of-a-life," see Regan, supra note 47, at 243. FN80. Id. at 248-49. Regan's respect principle shares important theoretical similarities and differences with Immanuel Kant's notion that we treat other persons as ends in themselves and never merely as means to ends. Id. Rational agents have value in themselves independent of their value to others. Id. In a sense, this notion is very similar to the notion of equal inherent value. The difference is Regan's use of the subject-of-a-life criterion to identify in a non-arbitrary and intelligible way a similarity that holds between moral agents and patients and that gives rise to a direct duty to the latter. Id. at 243-49. FN84. Regan argues that this is a prima facie right because the right of the innocent may be overridden in two situations that are derivable from the respect principle. First, when faced with a choice of harming the few or the many, Regan argues that it is better, special considerations aside, to harm the few. Regan calls this the "miniride" principle. Second, when faced with choosing to harm the many or the few, and when harming the few would make them worse off than any of the many, it is, special considerations aside, appropriate to override the rights of the many. Regan calls this the "worse off" principle. These "special considerations" include the presence of acquired duties or rights, certain voluntary acts, including risky activity, and the past perpetration of injustice on moral agents or patients. The "special considerations" simply serve to clarify Regan's notions of what sort of harm matters for his theory. For example, a slave owner is not "harmed" when a slave is liberated against the master's will. The master is guilty of behavior that violates the right to respectful treatment and the prima facie right not to be harmed. The master cannot, then, be the beneficiary of the miniride or worse-off principles, both of which pertain to the justifiable infliction of harm on moral innocents. FN85. Regan, supra note 47, at 330-31, 353, 363. FN88. See infra notes 92-95 and accompanying text. FN89. Deborah Blum, The Monkey Wars 115 (1994). FN90. Jasper & Nelkin, supra note 2, at 90. FN91. Sperling, supra note 7, at 82. FN92. Finsen & Finsen, supra note 11, at 82. FN95. For example, prominent animal advocate Henry Spira became involved in the animal issue "after his participation in a New York University continuing education course on animal liberation' taught by philosopher Peter Singer." Jasper & Nelkin, supra note 2, at 26. Spira had read an article by Singer about animals and had found Singer's argument for animal liberation "direct and powerful." Finsen & Finsen, supra note 11, at 58; see also Garner, supra note 9, at 64. Similarly, PETA founders Alex Pacheco and Ingrid Newkirk were heavily influenced by Singer's Animal Liberation, and PETA "requires new employees and college students participating in its internship program to read Singer's Animal Liberation." Jasper & Nelkin, supra note 2, at 80. Neither is Regan's work required material, nor do PETA merchandise catalogs any longer offer Regan's book for sale. Animal Liberation, however, is described in the PETA catalog as a book about "animal rights philosophy," and it is included in a section entitled "animal rights books" together with the advice: "If you only read one animal rights book, it has to be this one." Catalog for Cruelty-Free Living, in PETA News, Spring 1994, at 16. It should also be noted that from the outset of the modern animal movement, many of the leading cases and campaigns involved essentially welfarist positions. FN96. On the dust cover of the second edition of Animal Liberation, there are several statements about the book, and the following quote is printed in type that is about ten times larger than any of the other quotes: "The modern (animal rights) movement may be dated to the 1975 publication of Animal Liberation by Australian philosopher Peter Singer," which demonstrates a quite deliberate representation that Animal Liberation articulates a theory of animal rights. Singer, supra note 46, at back panel (citing Emptying the Cages, Newsweek, May 23, 1988, at 59). The original Newsweek quote simply used "modern movement" with out any adjective. Singer himself refers to the Newsweek article in the text of the second edition of Animal Liberation, describing the article as one about "animal liberation." Singer, supra note 46, at 245. Nevertheless, when the quote was reproduced for the dust cover, the words "animal rights" rather than "animal liberation" were inserted. Id. at back panel. In his 1985 anthology, In Defense of Animals, Singer is described as a prominent proponent of animal rights. In Defense of Animals (Peter Singer ed., 1985). Moreover, in his 1995 book, How Are We to Live?, the cover states that Singer is "hailed as the father of the Animal Rights movement." Peter Singer, How Are We to Live? (1995). More recently, and in connection with attempts by advocates to secure the release of chimpanzees, Singer claimed that "(w)e want chimps to cease to be items of property, and to be seen as persons with rights." Scott Allen, Apes on Edge: Air Force Pioneers' Future Unclear, The Boston Globe, Nov. 7, 1994, at 1. FN97. Garner, supra note 9, at 27. FN98. Andrew N. Rowan, Animal Rights versus Animal Welfare: A False Dichotomy?, The Animal Pol. Rep., Apr. 1993, at 1, 2. A three-way paternity dispute appears to be emerging concerning exactly who should be credited with the fatherhood of the animal rights movement. Singer claims the title, although he expressly rejects rights. Regan also claims the title for having developed a theory of animal rights. Finally, Anglican minister Andrew Linzey claims that his book, Animal Rights, "heralded the modern animal movement." See press announcement for Andrew Linzey, Animal Theology (1976). FN99. Rowan, supra note 98, at 2. FN100. Garner, supra note 9, at 27. FN101. Newkirk, supra note 31, at 43-44. FN103. For a comprehensive discussion of the structural defects of animal welfare, see Francione, Animals, Property, and the Law, supra note 1; Francione, Animals, Property and Legal Welfarism, supra note 1. FN104. See Finsen & Finsen, supra note 11. FN108. Garner, supra note 9, at 234. FN112. Finsen & Finsen, supra note 11, at 119. FN116. Id. at 127. Some of the difficulty in trying to assess the impact of animal advocates on institutionalized animal exploitation is that people often react based on considerations other than animal concerns. For example, many people do not eat animal products for health reasons, and many oppose experiments involving animals on the ground that such experiments are unsound from a scientific point of view. FN117. See Francione, Animals, Property, and the Law, supra note 1, at 165-249. A recent study performed by Rowan and two co-authors concludes that "it appears as though animal use (or at least the use of the six species primarily counted by the USDA) has declined by almost 50% since 1967." Andrew N. Rowan et al., The Animal Rights Controversy 15 (1994). Rowan's study and the causal inferences he draws are, however, seriously deficient for at least two reasons. First, the methodology of Rowan's study is seriously flawed. Rowan relies largely on figures reported by the Institute for Laboratory Animal Resources ("ILAR"), a quasi-governmental organization that vehemently supports animal use. Rowan claims that ILAR "reported a 40% decrease in the number of animals used in the U.S. in the ten years between 1968 and 1978, based on the 1968 and 1978 national surveys conducted by ILAR." Id. at 14. Rowan admits that it is "not clear how much confidence can be placed in the (ILAR) methodology or results" because in addition to general data collection problems as the result of reporting inadequacies and inconsistencies, there were inconsistencies among ILAR reports and an "unexplained discrepancy" between ILAR figures and USDA figures. Id. at 14-15. Indeed, in congressional testimony in 1981, Rowan stated that al though ILAR surveys had been used to support the notion that animal use was declining, the ILAR figures were "just not credible given all the other conflicting information." Use of Animals in Medical Research and Testing: Hearings Before the Subcomm. on Science, Research, and Technology of the House Comm. on Science and Technology, 97th Cong., 1st Sess. 305 (1981) (statement of Andrew Rowan). Curiously, Rowan relies on the same figures as part of his study but he did not explain what changed his view in the intervening years about the credibility of the ILAR figures. In addition, Rowan's reliance on the ILAR figures is problematic because they include supposed de creases in the numbers of rats and mice used, but current federal law does not require that the use of these animals be reported and reliable data collection is virtually impossible. Nevertheless, and quite remarkably, Rowan concludes that "(d)espite these problems," animal use "has declined by almost 50% since 1967." Rowan et al., supra at 14 (1994). Second, even if animal use in laboratories has declined, Rowan does not offer any support whatsoever for the notion that this decrease is, in any way, the result of efforts by animal welfarists any more than he or Spira can show that the increase in animal use in laboratories was attributable to the actions of anti-vivisectionists. Interestingly, Rowan reissued the study in 1995 and now claims that the decline is between "23% and maybe as much as 50%." The 1995 study does not indicate that there was a 1994 version. FN118. Garner, supra note 9, at 122. FN119. See, e.g., Jeremy Rifkin, Beyond Beef: The Rise and Fall of the Cattle Culture (1992). FN120. U.S. General Accounting Office, Report to the Chairman, Subcomm. on Agric., Rural Dev., and Related Agencies, Senate Comm. on Appropriations: Dep't of Agric. Animal Welfare Program 21 (1985). For a discussion of this report, see Francione, Animals, Property, and the Law, supra note 1, at 216-218. FN121. Office of Technology Assessment, U.S. Congress, Alternatives to Animal Use in Research, Testing, and Education 10 (1986). For a discussion of this report, see Francione, Animals, Property, and the Law, supra note 1, at 216- 218. FN122. Office of the Inspector General, U.S. Dep't of Agric., Enforcement of the Animal Welfare Act, No. 33600-1-Ch (1995). FN124. See Animal Welfare Institute, Beyond the Laboratory Door (1985). For a discussion of the AWI position, see Francione, Animals, Property, and the Law, supra note 1, at 222-224. FN125. See Humane Soc'y of the United States, Petition for Changes in Reporting Procedures Under the Animal Welfare Act Before the Animal and Plant Health Inspection Service of the United States Dep't of Agric. (1992). For a discussion of the HSUS position, see Francione, Animals, Property, and the Law, supra note 1, at 218-222. FN126. Foundation for Biomedical Research, Animal Research & Human Health: Understanding the Use of Animals in Biomedical Research 14 (1992). These statements about the federal Animal Welfare Act are accurate if they are understood to mean that the law allows the experimenter to determine what level of care is "proper," but this is probably not how these statements are understood by the average reader. FN128. Finsen & Finsen, supra note 11, at 141. Interestingly, Finsen and Finsen note in this regard that some companies, such as Procter & Gamble, have resisted changes in the area of using animals for testing. Animal rights advocate Henry Spira disagrees, arguing that Procter & Gamble has reduced animal use and deserves praise. See Merritt Clifton, In League with the Devil, Animal People, June 1995, at 1. Clifton supports Spira's views. FN129. See Jasper & Nelkin, supra note 2, at 108-09. FN130. Garner, supra note 9, at 187. FN131. Id. at 188. Nevertheless, the animal movement has made some progress in the areas of fur and cosmetics testing, at least as far as educating consumers. It is important to note, however, that in these two areas more than any others, animal advocates have consistently taken an absolutist approach. That is, animal advocates who object to fur do not usually urge that fur be produced more "humanely;" rather, animal advocates have argued that fur wearing should stop immediately. Similarly, although some animal advocates, such as Henry Spira, have urged incremental reduction of animal use in cosmetics testing, many other advocates have criticized Spira for this "welfarist" approach and have pushed for the abolition of cosmetics testing. So, despite the advice that only gradual reforms work, it appears that if any approach has been successful--and none really has--it is the more absolutist approach embodied in the fur and cosmetics campaigns. FN132. Finsen & Finsen, supra note 11, at 109. FN137. Ironically, even motion pictures that purport to have an animal rights message involve the abuse of animals. For example, in the 1980s, a major studio produced Project X, a story of the illegal rescue of a group of chimpanzees by a military officer who learned that the animals were being used in nuclear radiation experiments. Television personality Bob Barker became aware that at least some of the chimpanzees used in the film had been beaten and otherwise abused in order to get them to perform. Barker caused charges to be filed with the Los Angeles District Attorney's office, which referred the matter to the Los Angeles Department of Animal Regulation. It was determined that animals had been abused in the making of the movie. Don Barnes, educational director of the National Anti-Vivisection Society (NAVS), had acted as science advisor for the film. The author was counsel to Mr. Barker. FN138. Jeremy Waldron, The Right to Private Property 49 (1988); see also C. Reinhold Noyes, The Institution of Property 290, n.13 (quoting Restatement of Property (1936)). "(L)egal relations in our law exist only between persons. There cannot be a legal relation between a person and a thing or between two things." Id. FN139. Singer argues that rights theories, such as Regan's, cannot provide any guidance for practical and incremental implementation of the theory. For example, in discussing the nature of ethics, Singer contends that ethics is not "an ideal system which is all very noble in theory but no good in practice." Singer, supra note 50, at 2. Singer identifies rights approaches to ethics as having to "rescue" themselves from their inapplicability to moral issues in the world through the introduction of "complexities" such as formulating very detailed rules for establishing ranking structures for rules. Id. at 3. He argues that utilitarianism does not start with rules but with goals, and thus has greater normative specificity because actions are prescribed or proscribed based on "the extent to which they further these goals." Id. Utilitarianism, Singer claims, is "untouched by the complexities" required to make deontological moral theories--including rights theory--applicable in concrete moral situations. Id. These claims are highly controversial. FN140. Kim W. Stallwood, A Conversation with Peter Singer, 14 The Animals' Agenda 25, 27 (1994). Singer's interview with Stallwood seems to conflict with Singer's overall theory of act utility, which would require that he support only those measures that maximize what Singer holds as his intrinsic values. FN141. Garner, supra note 9, at 193. FN149. Id. ("(S)tanding aloof in principled isolation seems like a futile gesture."). FN150. Id. at 193 (internal quotations omitted). FN151. By "property," I simply mean that which is regarded as exclusively a means to the end of someone designated as an "owner." It does not matter whether the owner is the state or a private individual for purposes of my argument that animal property will virtually always lose in any conflict with the owners of animal property. FN152. Francione, Animals, Property, and the Law, supra note 1, at 260. FN153. Although the notions of "basic" and "absolute" rights are discussed in much philosophical literature, their most lucid presentation for present purposes may be found in the illuminating analysis presented by Professor Henry Shue in his book, Basic Rights. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy 18-20 (1980). According to Shue, a basic right is not a right that is "more valuable or intrinsically more satisfying to enjoy than some other rights." Id. at 20. Rather, a right is a basic right when "any attempt to enjoy any other right by sacrificing the basic right would be quite literally self-defeating, cutting the ground from beneath itself." Id. at 19. Shue states that "non-basic rights may be sacrificed, if necessary, in order to secure the basic right. But the protection of a basic right may not be sacrificed in order to secure the enjoyment of a non-basic right." Id. Shue's rationale is that a basic right "cannot be sacrificed successfully. If the right sacrificed is indeed basic, then no right for which it might be sacrificed can actually be enjoyed in the absence of the basic right. The sacrifice would prove self-defeating." Id. Shue emphasizes that basic rights are a prerequisite to the enjoyment and exercise of non-basic rights, and that the possession of non-basic rights in the absence of basic rights is nothing more than the possession of rights "in some merely legalistic or otherwise abstract sense compatible with being unable to make any use of the substance of the right." Id. at 20. FN154. Id. at 20. Shue does not apply his theory to nonhuman animals, but the principles remain relevant. FN155. Harris, supra note 39, at 70 (quoting Henry Spira). FN156. This is a primary sense in which my views on rights theory are different from Regan's views. When I use the expression animal "rights," I generally refer to the single right not to be considered as property. Regan, on the other hand, does not recognize this distinction. FN157. A. Leon Higginbotham, Jr., In the Matter of Color: Race and the American Legal Process--The Colonial Period 36 (1978). For discussions of slavery, see Andrew Fede, People Without Rights (1992). See generally Robert B. Shaw, A Legal History of Slavery in the United States (1991). FN158. Legal theorist Wesley Hohfeld argues that "the term 'rights' tends to be used indiscriminately to cover what in a given case may be a privilege, power, or an immunity, rather than a right in the strictest sense." Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays 36 (Walter Cook ed., 1923). According to Hohfeld, a right, strictly speaking, is really a claim that has duty as its correlative. But there are other senses of "right" as well. For example, to say that X has a right may mean that X has a privilege to do something, or that X has the legal power to affect a change in relationship, or that X has an immunity in that some aspect of X's status cannot be affected. FN159. Claim rights can exist in personam in that the correlative duty binds a particular person or persons, or such rights can exist in rem, binding everyone unless the rightholder further refines the class. For example, under the law, the dogs that live with a person X are regarded as X's property. X has property rights, in rem, in the dogs. This means, among other things, that everyone has a duty not to interfere with X's ownership of the dogs. Of course, X can allow certain persons to act upon the dogs (including, under the law, to kill them), but everyone else remains bound not to interfere with X's exercise of rights over the dogs. FN160. See, e.g., Animal and Plant Health Inspection Service, 9 C.F.R. ยง 3.10 (1995) (setting forth specific requirements of water for dogs and cats). FN161. For example, the dispute between animal advocates and animal exploiters over the USDA's implementation of the 1985 congressional amendments to the federal Animal Welfare Act could be characterized as a dispute about whether the standards urged by animal advocates are cost-justified. See Francione, Animals, Property, and the Law, supra note 1, at 211-13. FN162. I am reminded of an ad campaign several years ago in which Frank Perdue claimed that his chickens, which he refers to as his "girls," were fed cookies for dessert. FN163. See Francione, Animals, Property, and the Law, supra note 1, at 99-100. FN164. Foundation for Biomedical Health, Animal Research & Human Health 1 (1992). FN165. Joseph Raz, On the Nature of Rights, 93 Mind 194 (1984). FN166. Regan has used this expression in conversation concerning these issues. FN167. For a discussion of the legal doctrine of standing in the context of animal issues, see Francione, Animals, Property, and the Law, supra note 1, at 65-90. FN168. Christopher D. Stone, Should Trees Have Standing?--Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450, 464-67 (1972). Stone states that "each time there is a movement to confer rights onto some new entity,' the proposal is bound to sound odd or frightening or laughable." Id. at 455. Stone observes that the law recognizes as "persons" corporations, joint ventures, municipalities, certain partnerships, and nations, and that it is necessary to recognize that animals have inherent value. Stone also argues that ecosystems and other parts of the environment have inherent value that should also be recognized. FN169. I do not think that I am being unfair by claiming that the new welfarist would support this measure. After all, there has never been such a progressive piece of legislation introduced in Congress, and new welfarists have supported legislation that is far less progressive. FN170. Richard Delgado, Our Better Natures: A Revisionist View of Joe Sax's Public Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform, 44 Vand. L. Rev. 1209, 1212 (1991).
Fair Use Notice and Disclaimer
Send questions or comments about this web site to Ann Berlin, annxtberlin@gmail.com |
