Animal Rights: An Incremental Approach

4. Assumptions of New Welfarism 6. Conclusion

5. Animal Rights: An Incremental Approach

This final section proposes some criteria that may be used to identify those measures, short of abolition, which are consistent with animal rights theory. In presenting these criteria, the argument relies on only two aspects of rights theory. These aspects incorporate the central elements of the theory but do not incorporate them all, so as to keep my criteria uncomplicated and uncontroversial as possible.

The first aspect is that rights theory seeks the abolition of the institutionalized exploitation of animal subjects-of-a-life, which involves treating animals exclusively as means to ends. In legal terms, rights theory seeks to eradicate the property status of nonhumans. This aspect of rights theory reflects the idea that animals have interests other than merely being protected from pain and suffering.

The second aspect is that, in seeking this long-term goal, the rights advocate cannot endorse the sacrifice of fundamental interests of some animals today in the hope that some animals *447 tomorrow will no longer be treated as the property of human owners. All subjects-of-a-life have equal inherent value, and it violates the respect principle to ignore the inherent value of any such being because some other beings would "benefit" from ignoring that value.

These aspects of rights theory are central because they in corporate key notions of rights theory; many more have obviously been omitted, including numerous complicated ones. The point is to see what criteria can be derived from these basic notions. Future scholarship will hopefully further develop the relationship between animal rights theory and practice. In addition, I think that these aspects of rights theory are relatively uncontroversial--not, of course, in any absolute sense, but rather that anyone who identified herself as an advocate of animal rights would probably agree that these are key aspects of rights theory, and agree with the content of these assertions as well. That is, if a person considers herself an animal rights advocate, she probably agrees with the statement of this long-term goal, and the limitation placed on getting to that goal--by whatever means.

Criterion #1: An Incremental Change Must Constitute a Prohibition

One key aspect of a right is that it constitutes a claim. A right involves other notions as well, but one very important component of a right is that it constitutes a claim that has a correlative duty. [FN158] For example, to say that Mary has a right to have people stay off her property means that she has a claim against everyone (unless she chooses to limit who is *448 affected) that they stay off her land, and that everyone has a correlative duty not to enter upon her land. [FN159] Central to a claim right then, is that there be a prohibition imposed on other people not to interfere with the rightholder with respect to the interest protected by that right.

An earlier part argued that laws requiring that people treat animals "humanely" cannot, as Rowan and others have argued, create "rights" for animals precisely because nothing is prohibited by such laws except for the completely gratuitous waste of animals. There is nothing that the animal (or the representative of the animal) can claim because no one is under any obligation to refrain from any particular action. There are laws that prohibit the "unnecessary" infliction of suffering, but such laws are useless if, as is the case, no one is under a duty not to do any particular act. Indeed, virtually all acts involving and upon animals are considered as "necessary" as long as there is some identifiable human benefit. Without such duties, there can be no rights of any kind.

Although prohibitions are, in this sense, central to all claim rights, they are particularly central in the case of animal rights. The theory of animal rights says nothing about what particular rights animals have other than the right not to be treated as the property of humans, which is what makes their institutionalized exploitation possible in the first place.

To the extent that we try to cast animal rights theory in terms of claims, the animal claim will not be a claim to do something, as is the case where most human claim rights are concerned, but will be a claim against instrumental treatment. In this sense, the claim right involves a prohibition not only in the sense that others are prohibited from interfering with the interest protected by the right, but also in the case of animal *449 rights. The only interest at issue is the animal's interest in not being treated exclusively as a means to an end; the interest is not a claim involving making contracts (which involves the creation of other legal interests) or a claim involving the relationship of animals as rightholders to other property. The claim is one that the animal not be subjected to instrumental treatment, and that aspect of the relevant claim right further accentuates the notion that a right involves some reasonably specifiable conduct that is prohibited because if it were not, the claim right would be compromised.

Thus the first criterion for any incremental change, beyond the incremental education of the public about the need to abolish institutionalized animal exploitation, is that it must prohibit some reasonably identifiable behavior. This prohibition must also correlate with the ability of the animal to claim (through a representative) the protection of the right.

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

To say that the incremental means must themselves be "abolitionist" is correct if the definition includes prohibitions against reasonably identifiable conduct which, if engaged in, would constitute a failure to respect a particular animal interest. But these incremental means are by definition not "abolitionist" in the sense that no one incremental prohibition will effect the long-term goal of ending animal slavery. In order to avoid confusion, it is better to reserve the use of "abolition" for the long-term goal of rights theory, and "prohibition" as one criterion of incremental measures that seek to realize that long-term goal.

The requirement of a prohibition is a start, but only a start, because standing alone, the requirement is arguably incomplete. *450 For example, there are legal regulations that require that animals used in experiments be provided with water regularly. [FN160] This law would not have the same problem as one that required that animals be treated "humanely," because the latter does not really require any particular human conduct at all; therefore, we cannot say that the law prohibits anything. But a law that requires specifically that animals be watered is different because it does prescribe a standard in that it prescribes that a particular interest of the animal must be observed. The property owner has a duty to give water to the animals. And precisely because the standard is correlative with a duty, such a law could be phrased as a prohibition--that it is prohibited not to give water to animals used in experiments.

Although water may be withheld if the animal is being used in a dehydration experiment,that limitation is sufficiently definite to delineate a very clear set of instances to which the duty would apply. Thus it would be permissible to say that a prohibition is involved in all those cases in which the animal was not being used for purposes that specifically required de hydration.

The requirement of a prohibition has the advantage of ruling out from the class of incremental measures any rule that does not establish a standard of behavior with a correlative duty that has behavioral content, i.e., that the property owner is prohibited from engaging in some conduct that the property owner is under a duty not to do. This exclusion would involve all welfarist laws and regulations that require only that the property owner treat the animal property "humanely." The disadvantage of the prohibition requirement as the single criterion for identifying incremental measures is that any law or regulation that does establish a standard with a correlative duty could be regarded as a prohibition even though the standard was agreed to be (even by welfarists) nothing more than a welfarist reform. So, although the requirement of a prohibition is useful, and allows us to exclude some welfarist reform (the rules that prescribe "humane" treatment and proscribe "unnecessary" *451 suffering), it is not yet sufficient.

Another sense in which the prohibition requirement, stand ing alone, is problematic is that laws prohibiting only "inhumane" behavior (without more) do not constitute true prohibitions. I have argued that as a matter of legal process, these laws will be interpreted only to require that level of animal care that will facilitate the exploitation of the animal property of the owner without allowing the property owner to inflict gratuitous harm on the animal that will only decrease overall social wealth. So, although these laws do not prohibit any particular behavior, they will be interpreted to provide, for example, that unless the owner has a good reason, the owner has a duty to provide the animal with water in order to keep the animal alive.

This argument suggests that all welfarist laws, including those that require that animals be treated "humanely" or not be used in "unnecessary" ways and do not prescribe duties that proscribe certain conduct, nevertheless constitute prohibitions. Even if the standard that requires water is a standard that would have been adopted in the absence of a specific requirement, and would, at least in theory, be adopted even in the absence of a rule requiring "humane" treatment, there are important differences between the general and the specific standard. There are costs associated with interpreting the general standard that may result in greater uncertainty that is ameliorated by the specific standard.

There are many reasons why property owners act in ostensibly irrational ways and do not maximize the value of their property; not being in possession of all relevant information is one reason that is particularly important in the context of animal property where relatively little is known about animal "welfare" (understood as that which makes animals good "producers" for their human owners). Although the indefinite standard may, in theory, lead to the same result (a definite standard), that process of evolution is fraught with many uncertainties that, at least on the level of practical reasoning, support a distinction from the prohibition. Moreover, there may be cases in which welfarists propose a reform that provides a standard that is not cost-justified. [FN161] In sum, the requirement *452 of a prohibition is useful in excluding some incremental means, but this is only the beginning of the inquiry.

Criterion #2: There Must Be a Prohibition of an Identifiable Activity That is Constitutive of the Exploitative Institution

Consider the following proposals:

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

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

These proposals cannot be distinguished using the first criterion alone, because, for the reasons stated above, both of these can be considered to involve prohibitions. Although Proposal 2 accords more with the notion of a prohibition, Proposal 1 can be conceptualized as a prohibition on keeping four chickens in a cage.

This is not to say, however, that there are no distinctions between Proposal 1 and Proposal 2.With respect to the criminalization of the use of animals in a certain type of experiment, a particular activity that is constitutive of the general practice of vivisection has been stopped. At any given time, vivisection as an institution for the exploitation of nonhumans involves the use of animals for a number of discrete and identifiable purposes, such as experiments for particular purposes, testing or education. This is, however, not the only way in which the institution of vivisection may be understood in terms of its constitutive activities. For example, vivisection may also be broken down from the standpoint of the animals used; that is, vivisection may be considered as the use of nonhuman primates used for all research, testing, and educational purposes, dogs used for all such purposes, etc. Or it may be understood as all animals of a particular species used for particular purposes. *453

The problem is that at some point, the description of the constitutive activities of vivisection will become so detailed that the concept of constitutive activity will cease to have any usefulness apart from providing a list that contains a statement of every animal used in every procedure for all research, testing or educational purposes. For example, an argument that one of the constitutive parts of the general practice of vivisection was the use of this particular rabbit in this particular experiment, would, of course, be correct strictly speaking, but then the very same experiment done with five different rabbits would constitute five different "activities." In this context (as in most others), we use words like "activity" to pertain more generally to a class of actions. This is not to say that the usage of the concept is governed in some determinate way; there will, of course, be close cases. But just because there are close cases does not mean that there is no difference between using "constitutive activity" to apply to the use of all animals in a particular type of research (Proposal 2) and using that concept to describe the use of a particular animal in a particular experiment. For example, if we are going to describe a set of events collectively as an "activity," it seems that the classification must be based on relevant similarities shared by those events. As an initial matter at least, it appears as though we can regard the activity described in Proposal 2 as a constitutive activity because it describes a significant group of events and collects them together based on the character and purpose of the use (i.e., drug addiction experiments).

The question then becomes whether, based on this analysis, there is a difference between Proposal 1 and Proposal 2. Assuming that the institution of exploitation at issue is animal agriculture (the analog of vivisection as a general matter), the question is whether changing the number of hens in the cage from four to three constitutes a prohibition of a constitutive activity of the overall practice. This question asks whether we can regard having four hens in the cage as a different activity from having three hens in the cage. At some point, the constitutive activities of animal agriculture may become so specific as to be nothing more (or less) than a list of every animal that has been used in animal agriculture so that, in a given year, there are eight billion different constitutive activities *454 because in the United States alone, we consume that number of animals annually. The hen example is not quite at that end of the spectrum, but it also seems to use a notion of constitutive activity that differs from that used in Proposal 2. If Proposal 1 read instead that we would keep the four hens in the cage but would make some other environmental adjustment, such as giving "treats" to the hens, [FN162] no one would say that we had effected a prohibition of a constitutive activity because keeping four hens in a cage with cookies is a different activity from keeping four hens in a cage without cookies. That does not mean that the two situations are the same; it means only that it tugs at our notions of what "constitutive activity" means when we try to apply it in the cookie example.

Applying this analysis, and recognizing that we are often dealing with matters of degree, it appears that although Proposal 1 can be said to contain a prohibition, it does not rise to the level of eradicating an activity that is constitutive of animal agriculture. It does represent a change in the character of the exploitation, but I think that it stretches the concept of "constitutive activity" to say that every such change (or this change) is anything more than just that--a change, but not the cessation of something that might be called an activity. On the other hand, if "constitutive activity" has any meaning, it would appear as though Proposal 2, which classifies a group of events together based on the nature of the experiments (viz., all drug addiction experiments), and prohibits that class of events, does involve an "activity" that is "constitutive" of the overall offending institution.

This discussion indicates that whether something is a "constitutive activity" or not may depend on degree. For example, if Proposal 1 required that we take all four hens out of the battery cage entirely and place them in a small hen house that nevertheless afforded more movement, we might be inclined to say that the proposal involved abolishing an activity that was constitutive of animal agriculture, viz., the battery cage. Again, just because the difference between what is and what is not *455 regarded as a "constitutive activity" may frequently be a matter of degree rather than of category does not obviate the usefulness of the concept as a tool to distinguish among certain states of affairs. It only means that sometimes it is difficult to apply the concept because we are in the gray area.

In sum, the second criterion--that the prohibition be one that ends something that we can reasonably regard as a salient part of the institution of exploitation--can help to distinguish further incremental change that reflects the rights philosophy, but, as in the case of the first criterion, the combination of these two criteria cannot do the job completely. There is uncertainty that occurs in harder cases about whether a prohibition really does involve a significant activity that is part of the exploitation, and there may very well be cases in which the prohibition is said to affect a constitutive activity but where the incremental change violates salient aspects of rights theory. For example, even if the elimination of the battery cage and the substitution of the small hen house constitute a prohibition of an activity (i.e., the use of the battery cage), that proposal implicates the problem that the change nevertheless continues to sanction the exploitation of the hens, albeit in a different form.

If the prohibition achieves a state of affairs that is consistent with the status of animals as subjects-of-a-life, then that prohibition abolishes a constitutive activity of exploitation even if the prohibition explicitly sanctions some other form of exploitation. For example, if egg batteries are abolished, but hens, still regarded as property, are kept under circumstances that would be appropriate if their property status was abolished entirely (i.e., they have freedom of movement and are other wise kept as they would be if they were no longer regarded as property), then, although the hens will continue to be exploited as property, the prohibition on battery cages and the substitution of the alternative system abolishes a constitutive activity of exploitation. This view will be considered further when discussing non-tradable interests and the substitution of types of exploitation.

456Criterion #3: The Prohibition of a Constitutive Activity Must Recognize and Respect a Non-Institutional Animal Interest*

Although there is some controversy over whether animals can be said to have "interests," as has been discussed elsewhere, [FN163] for good reasons, most people, including those who exploit animals, regard nonhumans as having a wide range of interests. The law supposedly protects animal interests. The problem is that for the most part, these interests are those that facilitate the exploitation of animals for a particular property use. For example, the law protects the interests of animals used in experiments to the extent necessary to ensure that the animal produces data of the quality considered accept able by research scientists. Indeed, those who support the use of animals in experiments assure the public that "(o)nly those animals that are cared for properly will be good research subjects," [FN164] and that the federal Animal Welfare Act and other sources of regulation provide for the requisite care. In this sense, each form of institutionalized exploitation will have rules about the "humane" care of animals that are tailored to that particular use of animal property and that reflect the particular concerns of that exploitative activity.

To the extent that we seek the incremental eradication of the property status of animals, it is necessary that there is a corresponding recognition of the interests of animals in not being regarded as property, or, as Regan would say, in not being treated exclusively as a means to human ends. This concept follows from one of the two primary aspects of rights theory: that the goal of rights theory is to eradicate the property status of animals so that animals are no longer treated exclusively as means to ends. The only interests recognized by such a proposed incremental measure are those that are necessary in order to exploit animal property. These interests do not represent any movement (incremental or otherwise) toward eradicating the property status of animals; instead, they reinforce *457 that exploitation.

To eradicate the property status of animals, there must be a recognition of an interest that is non-institutional, or that is not simply an interest that ensures the animal is used "wisely" in a context of exploitation. It is only through recognition of extra or non-institutional interests that incremental eradication of property status can be achieved; recognition of institutional interests, such as the interest of a turkey destined for slaughter in being fed, merely reinforces and supports the property status of animals. The test for identifying such an interest is simple in one sense but, like the second criterion, necessarily admits of degrees: if the interest imposes a significant cost or tax on the ownership of animal property under circumstances in which the cost is clearly not justified in light of the "benefit" to the property owner, then the interest recognized is extra or non-institutional. The test is simple to apply because it requires merely that we identify what costs are imposed by the regulation of property ownership, and whether those costs will significantly exceed any benefit that animal property owners derive.

An alternative way to think about this criterion is to limit the notion of interests to those interests that the animal would have if the animal were no longer regarded as property. This notion relates to the discussion in the preceding section concerning the identification of activities that are constitutive of exploiting institutions.

Criterion #4: Animal Interests Cannot Be "Tradable"

An earlier argument held that within the current structure of animal welfare theory embodied in the law--a set of doctrines that I call legal welfarism-- the only interest of an animal that cannot be sacrificed is the animal's interest in not being "wasted," or being exploited, in a manner that produces no socially recognized "benefit." Where any other interests are recognized, these are recognized only to the extent that they do not conflict with human property rights; once there is a conflict, the animal's interest is systematically, and, in light of the normative assumptions of the system, necessarily, ignored. This sort of sacrifice of interests is, however, completely inconsistent with the notion of a right as something that protects an *458 interest and cannot be sacrificed.

This is not to say that the right cannot be overridden by another right that we judge to be more important. For example, although the law guarantees the right of free speech, it also provides for a right of physical security through a number of criminal and civil laws. If X wishes to yell "fire" in a crowded theater when there is no fire and where there is no purpose served by X's act, other than his amusement at watching a stampede of frightened people, their right to be free from the physical harm of possibly being trampled will trump X's right of free speech. But we do not make this judgment based on the "benefit" to any of the parties. The judgment would not change even if it could be shown that X would benefit far more by being able to yell "fire."

Assume the following: (1) a rich friend tells Y that she will pay Y $5 million if Y yells "fire" in the theater; (2) Y reasonably believes that even if people are injured as a result of the joke and sue him, their injuries, quantified by what they would get if they sued for their injuries, would only amount to $1 million under a worse-case scenario. Y might be tempted to proceed with the prank if only civil liability were involved; if the only concern was that Y might get sued for civil damages, he might very well go ahead, pay the maximum of $1 million, and pocket the remaining $4 million. But Y would still be liable under the criminal law for causing these injuries and be subject to criminal punishment.

The reason for this is clear: the criminal law recognizes that people have some interests that should not be sacrificed even though someone else will benefit if those interests are sacrificed. When we evaluate rights for purposes of deciding conflicts between rights, we do not look at consequences solely or even primarily. Rather, we look to the interests protected by rights and the competing values involved. In the above example, free speech is recognized as important in part because we value diverse contributions to the marketplace of ideas. But yelling "fire" in a crowded theater when there is no fire does little to add valuable input to our common pool of ideas. As a result, it is relatively easy to rank the rights in this case; but no ranking has been done by reference to the aggregation of consequences.

To the extent that the law recognizes that animals have *459 interests that exceed those interests identified above as institutional interests, those interests can, in light of the status of animals as property, be recognized for the most part only in so far as there is no socially recognized benefit to be gained from their exploitation. Once that benefit is identified, the interest is traded away to secure the human benefit.

If there is to be an incremental eradication of the property status of animals, then there must be a recognition that animals have interests that go beyond those interests that must be respected if we are to exploit animals efficiently. And, following the second salient assumption of animal rights theory, these non-institutional interests cannot be tradable just be cause the aggregation of consequences indicates that the trade is justified to secure the human "benefit." Indeed, animals are property precisely because animals have no interests (beyond those that must be observed if the animals are to serve their "purpose" as our property) that are safe from being balanced away as soon as some human "benefit" is identified.

In one sense, this criterion seeks to ensure that the incremental eradication of property status is indeed an incremental "assembly" of personhood status for nonhumans through the recognition of the inherent value of animals. At present, we do not recognize animals as having any value except for their value to us. For example, philosopher Joseph Raz claims that although animals may have some value apart from their instrumental use to people, animals cannot have inherent value because any value of the animal ultimately derives from the animal's contribution to the happiness and well-being of some human or humans, who do have inherent value. [FN165] Raz's views are representative of many people's views. The fourth criterion ensures that each incremental move provides for and protects some notion of the inherent value of animals.

In one sense, this criterion could be said to address the enforceability of protection for recognized interests. One could say that under slavery as practiced in the United States, there were some laws that seemed to recognize that slaves had interests other than ones directly related to keeping a slave alive and fit for whatever purpose the slave was intended. For the *460 most part, however, these interests were ignored whenever they conflicted with the interests of the master whose property rights were held to outweigh the slave's interests. If animal interests are to be taken seriously, then, to the extent that the law regulates the use of animal property beyond what is necessary to exploit the animal property, that regulation must be held as eliminating the property right to the extent necessary to protect the interest. Otherwise, the victory for animals will be illusory; as soon as the rights of human property owners are triggered, the animal interest will be ignored.

Accordingly, the interest of the animal must be seen explicitly as an interest that is to be protected as would a true "right" within the legal system. The interest would not be a "right" in the full sense in that since animals would not yet possess the basic right not to be regarded as property (they would still be used for food and in experiments), they would have non-basic rights that could be said to be building blocks of the basic right not to be property. These non-basic rights must, however, be treated as though they were rights in the sense that they will be regarded as protecting interests that are not subject to interest balancing.

To protect animal interests in this manner would require a very deliberate and intentional recognition of a type of legal norm that our legal system does not yet recognize: a norm that functions like a true right in that it recognizes an interest that cannot be balanced away, but that is held by a being who has not yet achieved the status of being a holder of the basic right not to be regarded exclusively as a means to an end. Indeed, every time we recognize such a right, we move away from treating the being exclusively as a means to human ends; the problem is that the being's most fundamental interests in not being eaten or used in experiments or kept in a zoo have not yet been recognized. These incremental measures may be seen, however, as recognizing pieces of the basic right not to be regarded as property. So, although these interests represent non-basic rights in one sense (the animal does not yet by definition have the basic right of not being property), the interests are more properly regarded as "parts" of the basic right of animals not to be treated exclusively as means to human ends. Tom Regan calls this normative notion a "proto-right" because it functions like a right but runs to the benefit of a non- *461 rightholder, properly speaking. [FN166] Regan's terminology is adopted here because it requires that we focus on the notion that this sort of norm is something different from a right and something very different from what now exists under legal welfarism.

In order to recognize that animals have such interests, it is necessary that these interests be understood as trumping the interests of property owners. And in order to be effective, it would be necessary for the legal system to recognize that it is animals who hold this interest, and not their owners or government agencies, such as the USDA, which protects only those animal interests that make animals property in the first place. It would be necessary to recognize that animals (or, more properly speaking, the guardians of animals) have standing to articulate these interests against property owners, which would functionally require that some sort of guardian be recognized. [FN167]

Because animals are regarded as property, and property is, by definition and several hundred years of accepted under standing, that which cannot have legal relations with persons or other property, courts have developed doctrines that preclude animals or their surrogates from articulating their interests in courts of law and before regulatory agencies. This exclusion is based on the supposed inability (in terms of the power of the court) to adjudicate claims made by property or those who purport to represent that property. So, if the extra- or non-institutional interests of animals are to be non-tradable, then those interests, which must be seen as recognizing "mini-trumps" of the property rights of animal owners, must be protected by the legal system. This will require that animal interests have legal standing and that some human actor (and this could be the police) have standing to articulate those claims before the appropriate body. This is, of course, not a new idea. In Should Trees Have Standing?--Toward Legal Rights for Natural Objects, Christopher Stone argued that the inherent *462 value of nonhumans could be recognized and protected by guardians just as are the rights (basic rights and non-basic rights) of children or the mentally disabled. [FN168]

Criterion #5: The Prohibition Should Not Substitute an Alternative, and Supposedly More "Humane" Form of Exploitation

This fifth criterion follows from both aspects of rights theory identified at the outset of this section: that rights theory requires eradication of the property status of animals and that the right of animals not to be regarded as property cannot be compromised for consequential reasons. In many respects, this fifth criterion is the most significant of the group because it often will be the most helpful in determining whether a pro posed incremental measure is consistent with rights theory, although, like the other criteria, this one is not exact and will not provide an easy answer in all cases. But then, the idea is to try to make a morally informed decision, and not necessarily one that is always right.

The fifth criterion holds that it is inconsistent with rights theory to treat some animals exclusively as means to the ends of others, or as property, in order to secure some benefit that it is hoped will eventually secure a higher moral status for other animals. This is a serious problem for the new welfarist who purports to endorse the long-term goal of animal rights by using short-term welfarist reforms as a means to the end of abolition of institutionalized exploitation.

The new welfarist disregards the inherent value of some animals in order to secure a benefit for other animals. For example, the federal Animal Welfare Act provides that animals *463 may be used in biomedical experiments as long as their use is "humane" and they are not forced to suffer " unnecessarily." The new welfarists, who supported the 1985 amendments to the Act, believe that the Act will itself reduce animal suffering, but more importantly, that laws like the Act are "stepping stones" to the future recognition and respect of animals other than the ones whose interests are now being ignored. This Article argued earlier that there is simply no way to determine whether laws like the Act actually reduce animal suffering, and that, given the structural defects of welfare theory generally, such laws will generally be held only to require that con duct that facilitates the use of the animal as property. Apart from the rather puzzling logic of how we get to a non-property status of animals by persistent reinforcement of the property paradigm, there is something objectionable on a theoretical level when a rights advocate explicitly endorses the property status of animals as a way of eradicating that status on an incremental basis.

The present point can be made in the context of the tradability of interests that were discussed in the preceding section two criteria. The third criterion specified that in order to effect an incremental eradication of the property status of animals, interests that are recognized must be interests that are extra or non-institutional in the sense that they protect interests other than those, such as interests in food and water, that merely make the animal fit for the particular type of exploitation involved. The fourth criterion requires that these incremental interests, which will, by definition, fall short of protecting a basic right in not being property, nevertheless be respected as providing protection that cannot be compromised for consequential reasons alone. The fifth criterion requires that in securing proto-rights for animals, we cannot trade away or disavow the present moral status of animals as rightholders in the sense that their continued status as property is violative of their rights.

This fifth criterion is also related to, but distinct from, the second criterion that the prohibition serve to eradicate an activity that is constitutive of the overall institutionalized exploitation. As argued at that point, there are different ways of understanding the "parts" that make up the "whole" of vivisection; one can look at experiments as a group, species of *464 animals used as a group, etc. An "activity" could be understood based on the use of particular animals, or the purpose of experiments, or the kinds of procedures used. But the fifth criterion serves to place even further limits on the second in that even if the prohibition stops a constitutive part of the institutionalized exploitation, it cannot do so at the expense of substituting alternative forms of exploitation. So, for example, a complete prohibition on the use of chimpanzees in certain procedures can reasonably be said to constitute the prohibition of a constitutive activity, but to the extent that the advocate urges or accepts that other animals, such as dogs, should be used instead, there is a conflict with rights theory because such a rule would secure the benefit by treating subjects-of-a-life who have equal inherent value differentially by using species to deter mine membership in the protected class. To put the matter another way, such a rule would violate the fundamental proscription against speciesism.

In order to understand more fully the point of this fifth criterion, consider the following example: animal advocates propose to lobby for a law the preamble of which explicitly recognizes that animals have moral interests and the current configuration of battery hens per cage disrespects those moral interests. The body of the law provides that in recognition of the interests that hens have, no more than two shall be placed in battery cages, and these cages shall be enlarged to provide 196 inches of floor space rather than 144 inches. The egg industry objects to this arrangement vehemently as it is "unnecessary" to maximize the value of animal property and will, in fact, impose a very significant cost on the ownership of animal property in this context. The law provides that this interest must be protected irrespective of the economic consequences and contains penalties to ensure that the interests are not recognized subject to complete defeasance through a claim of human "benefit."

The traditional welfarist would undoubtedly support this measure because it will, in the welfarist's view, reduce animal suffering. The new welfarist, who seeks as a long-term goal the abolition of animal exploitation, will also undoubtedly support this, not only because it will supposedly reduce suffering, but because it is a "stepping stone" or "springboard" into abolition *465 at some future time. [FN169] The new welfarist and the traditional welfarist have the same view--that the measure will reduce suffering--but the new welfarist, unlike the traditional welfarist, believes that because the measure will reduce suffering, it will act as an incremental measure on the road to the long-term goal.

The animal rights advocate first dismisses the view that avoiding pain and suffering are the only interests that animals (human or nonhuman) have. If pain and suffering were the only relevant moral interests, then what would prevent us from using small numbers of "undesirable" humans to eradicate large amounts of human pain and suffering? Obviously, although we all have strong interests in avoiding pain and suffering, we do limit the ways in which pain and suffering can be alleviated so as to respect other interests--such as the rights of humans (and nonhumans)--as well. Second, the rights advocate dismisses the new welfarist view, also articulated by Singer, that a measure that reduces pain and suffering will lead to incremental achievement of the long-term goal of equal consideration for equal interests (Singer) or the abolition of all institutionalized exploitation (Regan) simply because it supposedly reduces pain and suffering. The rights advocate knows that some measures that supposedly reduce pain and suffering will do nothing more than assure that animals receive protection that is consistent with their status as property, and that facilitates their use as particular types of property.

The rights advocate begins by asking whether the proposal contains a prohibition or a regulation, and concludes that the proposal prohibits keeping more than two hens in the cage. She is unclear as to whether, even if the proposal is a prohibition, it constitutes a prohibition of an activity that is constitutive of the overall form of exploitation. She errs in favor of regarding the measure as prohibiting a constitutive activity. She is clear, however, that the proposal provides for the recognition of an interest that is extra-institutional in that it provides *466 for the recognition of an interest that is not tied to the property status of the hens. The proposal recognizes that the hens have inherent value beyond their status as property, which would justify only that level of regulation that facilitated animal use. Moreover, the proposal provides that these interests cannot be traded away and constitute proto-rights.

The problem with the proposal is that it is, on its face, not only consistent with the status of animals as property that, as a general matter, lacks inherent value, but does so in a way that explicitly trades away the basic right of the hens not to be property in favor of a recognition of moral status that falls short of recognition of the basic right, or the complete protection of some interest that the animal has in, for example, bodily movement. By agreeing to the two-hen arrangement, animal advocates are trying to achieve proto-rights while at the same time endorsing an alternative form of exploitation--two hens in a cage--that is supposedly more "humane."

In the present case, it seems reasonable to say that the interest involved is the interest that the hens have--all of them--in not being in the battery cage in the first place and in having freedom of movement that is appropriate to the species. To the extent that the proposal recognizes and respects that interest, then the prohibition arguably does not substitute another form of exploitation and is acceptable. That is, assume that a prohibition abolishes the battery cage entirely and replaces it with a rearing system that accommodates all of the hen's interests in freedom of movement and thereby fully recognizes the interest of the hen's bodily integrity. Such a state of affairs may be another way of saying that the prohibition ends a particular form of exploitation that has violated a particular non-institutional, non-tradable interest that we have now decided to respect. But this sort of substitution differs considerably from merely removing two of the hens from the cage in that although we have not yet abolished the institutionalized exploitation, the substitution eliminates the exploitation involved in the confinement system through a full recognition of the interest of the hens in their freedom of movement.

In any event, any substitution of exploitation raises serious questions for the rights advocate. If the incremental eradication of the property status of animals is going to be consistent with rights theory, it is important that proposed measures not *467 substitute one form of exploitation for another, supposedly more "humane" form of exploitation. Oftentimes, the alternative form of exploitation will provide in general terms for "humane" treatment, which then feeds the whole matter right back through the mechanisms of legal welfarism which, as argued before, are structurally defective and systematically devalue animal interests. But even if the substitute form of exploitation is more definite (i.e., there shall be no more than two birds per cage), and even if the proposal recognizes that the animals have some inherent value that justifies the recognition of a non-institutional, non-tradable interest, that recognition comes at the expense of endorsing another form of exploitation that rests on the legitimacy of the status of animals as property. This sacrifices the moral right of the animal not to be property for a proto-right that is designed to effect the incremental eradication of property status. The substitution of exploitation raises issues of moral conflict with rights theory, and incoherence in light of the fundamental assumptions of that theory.

This discussion does serve, however, to demonstrate that as a practical matter, certain campaigns will be difficult for animal rights advocates to pursue if they agree with this fifth criterion. It seems that the rights advocate really has no choice but to condemn any form of substitute exploitation, unless that alternative arrangement completely eradicates an activity constitutive of animal exploitation through the full recognition of relevant animal interests. The animal advocate must not herself suggest an alternative, and must not agree to any alternative offered by the exploiter. To do either would involve the rights advocate sacrificing the basic right of animals not to be property in order to secure a less-than-basic proto-right that, while it does recognize and respect that animals have person-like interests that transcend their status as property, is achieved at the cost of reinforcing the notion that a "better" system of animal slavery is acceptable. These considerations would militate in favor of conducting the sort of campaign that may not succeed (at least initially), but that will have a potentially powerful effect on educating members of the public about animal exploitation. And in many respects, such education, whether sought directly in the classroom or as part of a militant campaign such as one that supports a law to demand the *468 end of the egg battery and that urges no substitute form of exploitation (rather than a reactionary and conservative welfarist campaign to make the matters more "humane" for the hens) is probably the best thing that the animal rights advocate can do at this stage of history in any event. After all, we live in a society that tolerates the slaughter of 8,000 live pigeons every year on Labor Day at The Hegins Pigeon Shoot in Hegins, Pennsylvania-- just for the "fun" of the activity. Animals truly are treated exclusively as means to human ends, and anything that challenges this status is likely to better effect the long-term goal than reinforcing that property status through continued emphasis on avoiding pain and suffering--as if that were the only value involved here.

Footnotes