3. Origins of New Welfarism                 5. An Incremental Approach

4. The Assumptions of New Welfarism

Three assumptions explain the view that animal welfare reforms in the short-term are a way of achieving animal rights as a long-term goal. The first assumption concerns a particular view of our moral obligations toward animals. The second assumption is that animal welfare reforms can lead to the ultimate abolition of institutionalized animal exploitation. The third assumption is that many animal advocates believe that animal rights is an "all or nothing" theory that cannot provide a coherent program for incremental change leading to the recognition of animal rights.

A. Moral Reasoning: Confusion of the "Micro" and "Macro" Levels of Moral Theory

Classical animal welfare theory prescribes that animals have only one interest: an interest in not suffering "unnecessarily." There is a very understandable appeal to the notion that we ought to try to alleviate animal suffering. But that notion does not mean that measures that supposedly alleviate suffering will lead in the direction of animal rights. For example, PETA's Ingrid Newkirk argues that every welfarist reform "can *423 only bring us closer to our ultimate goal" of animal rights. [FN101] Newkirk gives as an example a law that requires water to be provided to a thirsty cow awaiting slaughter. Newkirk observes that certain animal "rights" advocates refused to support such a law because it would help to legitimize animal agriculture. She argues that she "cannot imagine how those vegetarians with clean hands, who declined to help, could explain their politics to the poor cows, sitting in the dust with parched throats." [FN102]

Newkirk uses a powerful image--a thirsty cow awaiting slaughter--and asks us to put ourselves in the position of determining whether or not to give the cow water. When confronted face to face with suffering of that kind, many people would feel an obligation to minimize the suffering of the cow even if they were avid meat eaters. Assume for present purposes that we are obligated to give water to the thirsty cow irrespective of our choice of welfare or rights theory. Even so, to say that we have an obligation to give the cow a drink of water in order to minimize her suffering does not in any way support the position that we ought to support animal welfare because it also seeks to minimize suffering.

Assume the following hypothetical: You are a guard working in a prison in which completely innocent people are being tortured and jailed by government security forces for no reason other than that they have political views that differ from those of the government. You disagree with the treatment of the prisoners but you feel that there is not much that you can do, and, indeed, you try your best to ensure that the prisoners under your guard are treated well. You avoid direct participation in any torture or physical mistreatment of the prisoners. One day, a prisoner who is obviously very thirsty asks for a drink of water. You feel that you have an obligation to minimize the suffering of the prisoner and you give the person a drink of water.

On another day, you decide that this institutionalized violation of basic human rights is not merely disagreeable to you, but that you want to seek the complete abolition of the torture *424 and imprisonment of political prisoners. Your fellow guards try to talk you out of it. They argue that you can reduce the suffering of prisoners with whom you come in contact by treating them kindly. Although you certainly want to reduce the suffering of these unjustly imprisoned people, you believe that the suffering is caused by the unjust institution. You think that what is needed is the elimination of the unjust institution that causes the suffering and deprivation of other interests that together define the minimal conditions of what it means to not be treated exclusively as a means to an end--in this case, the ends of the police state that imprisons people for their political speech. Indeed, you reply to your co-guards that even if the prisoners were not tortured, and even if they had relatively nice lives, their interests in liberty would be violated by their unjust imprisonment alone. Although not painful, this imprisonment still represents a serious deprivation of fundamental interests other than being free from suffering.

Now assume that you quit your job as a guard, form a human rights organization, and begin to seek legislation to rectify the situation. It seems that there are at least two options that are open to you to pursue your goal. First, you could pursue legislation that will require that all political prisoners receive a drink of water periodically, except when the warden of the prison makes a determination that compelling state security interests make it "necessary" to deprive prisoners of water. Then, after you secure that law, you can seek another law that will ensure that when a prisoner is tortured, all efforts will be made to see that the prisoner is tortured "humanely," and, specifically, that no prisoner shall be tortured in excess of two hours per day except when the warden deems it "necessary."

You lobby vigorously for a provision that requires any such "necessity" determination be approved by a committee of state security police. All committee members support the principle that prisoners need to be treated in this way in order to have a healthy state, but they all claim to endorse the view that prisoners ought not to be "unnecessarily" tortured for gratuitous purposes (i.e., the sadism of those who conduct the torture) that cannot be justified by the goal of state security.

Alternatively, you could pursue measures that are aimed directly at the institutionalized exploitation--the practice of imprisoning, torturing, and killing people solely to benefit a *425 corrupt regime. You might mount a campaign of public education aimed at persuading the population that such practices exist and should be abolished. Otherwise, you could organize constant but peaceful demonstrations by local residents at locations where political prisoners are incarcerated.

The difference between these two approaches is clear: In the first case, you focus exclusively on the interest of the prisoners in avoiding pain and suffering. This seemed a perfectly appropriate response while you were a guard. You generalize that legal and social change ought to do on the "macro" level what you have done in the prison on a "micro" level.

In the second case, you continue to be concerned about pain and suffering, but you approach the matter as one in which the pain and suffering is a direct result of institutionalized exploitation that treats people exclusively as means to the end of a corrupt political regime that seeks to justify the deprivation of all of these interests on the good consequences (public order, suppression of "radical" ideas, etc.) that supposedly result from the imprisonment, torture, and killing of these people. Accordingly, you conclude that seeking only to "reduce" suffering as a way of eradicating the institution will probably be counterproductive.

When a guard is confronted with the thirsty prisoner, she is deciding an issue of morality on a "micro" level that concerns how to respond to humans or other beings confronted with their suffering--especially when their suffering is the result of a socially sanctioned, institutionalized deprivation of all of that person's interests. What the guard then urges on a "macro" level of legal or social policy change is arguably a completely different matter. It is not the case that the decision to offer water to the prisoner requires that the guard try to secure laws to achieve that reduction of suffering on an institutional basis by, for example, providing a glass of water to each prisoner on the way to execution.

What these examples illustrate is that both animals and people have different sorts of interests. A political prisoner most certainly has an interest in avoiding pain and suffering but has other interests as well. For example, the prisoner has an interest in not being treated as a mere instrumentality and in not being part of the institutionalized exploitation that causes this suffering in the first place.

*426 When a guard responds to the suffering of a prisoner, the guard recognizes and respects an interest in avoiding pain and suffering. But once the guard recognizes that a prisoner has an interest in eradicating an institution of injustice that is unjustly causing the suffering in the first place, then, in order to do something about the institution of exploitation, it would be necessary to secure the respect of these other interests. After all, even if the political prisoner was not tortured, or subjected to thirst and hunger--that is, even if the interest in pain and suffering was respected completely--the prisoner would still be a prisoner.

Newkirk recognizes that animals have an interest in not suffering, but she and other new welfarists do not recognize that other interests are at stake, or that the suffering they seek to reduce is part of the institutionalized exploitation that explicitly condones whatever level of suffering is required to fully exploit the animal property.

B. The Structural Defects of Animal Welfare [FN103]

If the central tenet of new welfarism is correct, and if animal welfare is in fact causally related to animal rights and necessary to achieve the desired long-term goal, then we should be able to verify whether animal welfare is working. After all, animal welfare has been solidly entrenched in political and legal doctrine for well over one hundred years. Hardly anyone disagrees with the notion that we ought to treat animals "humanely" and should not subject them to "unnecessary" suffering. The first anticruelty law was enacted in 1641 and there are welfare-oriented laws at both the federal and state level, requiring that the slaughter of animals for food be performed in a "humane" way. Hundreds of federal laws and regulations purport to regulate the use of animals in experiments. Despite these laws and the ubiquitous acceptance of the welfarist requirement of "humane" treatment, the measurable progress of the animal movement has been minimal.

In what is the most comprehensive and balanced study to *427 date of the American animal rights movement, Lawrence Finsen and Susan Finsen discuss the issues and campaigns that are the subject of most activity by animal advocates. [FN104] The authors conclude that progress has not been significant either in terms of the extent of animal exploitation or of the character of animal exploitation. [FN105] Finsen and Finsen note that "(t)he extent of animal usage has increased tremendously in this century," and that intensive agriculture involves practices that would, in the past, have been regarded as cruel, but are now considered normal and accepted by the government, agricultural researchers, and the exploiting industries. [FN106] Moreover, they argue that the effects of campaigns on institutionalized exploiters have been minimal. [FN107]

Political theorist Robert Garner discusses both the British and American movements, concentrating on the former, which is acknowledged universally as more radical than the American movement. Garner argues that although animal advocates have experienced some successes, "much of the animal welfare agenda has been obstructed(,) and it is difficult to think of legislation improving the welfare of animals that has seriously damaged the interests of the animal users." [FN108] For example, Garner notes that there are many laws that pertain to farm animals, and "(i)n theory, given the regulations surrounding the slaughtering process, the suffering of farm animals in the last moments of their lives should be minimal." [FN109] Nevertheless, "(t)here have been many disturbing reports . . . that these regulations are regularly broken" and, "(i)n general, problems occur because animal welfare often takes second place to cost-cutting." [FN110] He concludes that "the animal protection movement has made relatively little progress in influencing decision makers." [FN111]

This is not to say that animal advocates--whether they are *428 rightists or welfarists--have not raised public consciousness about the issue of the social treatment of animals. On the contrary, there has been a marked increase in awareness about the subject; but increased awareness has not yet translated into significant decreases in animal exploitation. For example, the intensive farming of animals used in agriculture developed after animal welfare has become deeply entrenched in moral thought. Yet Finsen and Finsen note that while there has been "some progress" [FN112] made in Europe, "there has been no meaningful improvement in the welfare of farm animals, at either the state or national level" in the United States. [FN113] They also observe that "there is evidence that Americans are reducing their consumption of meat, though the role of ethical considerations in these decisions is not altogether clear." [FN114] They do note, however, that apparently many people no longer eat veal for ethical reasons. [FN115]

Similarly, Finsen and Finsen caution that any improvement in the plight of animals used in experiments is unlikely be cause "(v)ivisection has become a deeply entrenched feature of modern biomedical science, supported by powerful economic and political forces." [FN116] There have been many laws and regulations enacted, but there is nothing in the law that prohibits any experimentation no matter how much pain or suffering is caused to animals. Indeed, there are still psychological affection-deprivation studies, and trauma experiments that involve the burning of unanesthetized animals, despite the fact that these types of experiments fueled the emerging opposition to vivisection in the 1970s.

As I have argued elsewhere, the federal Animal Welfare Act, which provides the primary regulation of the use of animals in *429 experiments, does little beyond regulating issues of animal husbandry. It explicitly provides no restriction of what can be done to animals, or how it can be done. [FN117] Garner, who is clearly *430 sympathetic toward welfarist reforms, correctly observes that the aim of the federal Act "is not primarily to regulate the kind of procedures adopted but only the supply and care of animals destined for research institutions (purchase, transportation, housing, and handling)." [FN118]

Moreover, the types of animal experiments are getting more objectionable despite the"humane" ethic that should be militating against abuses. Not only do millions of animals continue to be used in laboratories, but genetic engineering and cross-species transplants present new and arguably worse threats to animals in terms of pain and suffering. Critics of biotechnology, such as Jeremy Rifkin, have argued that animals used in invasive experiments may experience pain and suffering for some period of time, which is usually a period shorter than the duration of the animal's entire life, whereas genetically engineered animals experience intense pain and suffering from the moment they first become conscious and until the time they die. [FN119]

In addition, there have always been serious criticisms of the enforcement of the laws and regulations concerning laboratory animals. Frequently targeted is the enforcement of the federal Animal Welfare Act by the United States Department of Agriculture ("USDA"), which enforces the AWA through its Animal and Plant Health Inspection Service ("APHIS"). Ironically, the most persuasive critiques of USDA/APHIS enforcement of the AWA come from the government itself.

In 1985, the General Accounting Office ("GAO") issued a report that found, among other things, that: (1) training and written guidance for USDA inspectors were insufficient; (2) the frequency of laboratory inspections was inadequate; (3) APHIS did not follow up on serious deficiencies in a satisfactory manner; and (4) inspection quality and reporting was uneven and inconsistent. [FN120] A 1986 study by the Office of Technology Assessment *431 was also critical of USDA/APHIS enforcement of the AWA. [FN121]

In 1995, the USDA Office of the Inspector General issued a report, finding that:

1. "APHIS does not have the authority, under current legislation, to effectively enforce the requirements of the (AWA)"(;)
2. research facilities were obtaining animals from shelters without observing the requisite waiting period;
3. "APHIS could make more effective use of its existing enforcement powers"(;) and
4. APHIS was failing to monitor animal care committees properly. [FN122]

The result was "insufficient assurance that the committees minimized pain and discomfort to research animals." [FN123] Conservative welfarist groups, such as the Animal Welfare Institute ("AWI") [FN124] and the HSUS [FN125] have also criticized USDA/APHIS enforcement of the AWA as inadequate in many respects.

Not only have welfarist reforms not moved society closer to the abolition of violence toward animals, but animal exploiters often point to welfarist reforms to defend their activities and to seek public support for continued reform. Nowhere is this more apparent than in animal experimentation. Groups like the Foundation for Biomedical Research produce educational materials in which they assure the public that laws such as the federal Animal Welfare Act provide for "proper care of laboratory animals" [FN126] and set standards for "veterinary care and use of *432 anesthetics or analgesics." [FN127]

Some success has been made in the area of product testing, but "the campaign to end animal testing of even the most frivolous products has not been won by animal advocates yet, despite the gains made." [FN128] Moreover, the connection between decreases in animal use in product testing and the efforts of animal advocates is unclear because the industries involved were themselves at least somewhat critical of animal testing before animal advocates focused on the area. [FN129]

These efforts are generally undertaken as efforts to influence consumers to use their purchasing power to avoid products that contain animal products or that have been tested on animals. Such efforts are undoubtedly important, but there are structural limits on this form of advocacy. As Garner correctly points out with respect to all products involving animal exploitation, "consumers are not usually given enough information on which to make an effective choice. Animal protection groups can, of course, seek to provide this information but have limited resources particularly when compared to the wealth of business concerns using animals."

Garner also notes that "some companies are making misleading claims by, for instance, marketing as cruelty-free', products where the ingredients, as opposed to the finished product, have been tested on animals." [FN130] Animal groups have sought to focus pressure on companies who test (as opposed to trying to persuade consumers not to purchase those items), but *433 " (t)here are doubts, though, about whether the consumer strategy has any long-term worth without a parallel campaign for legislative change." [FN131]

In the area of furs, Finsen and Finsen state that the "anti-fur campaign is one campaign in which activists can claim to have made progress." [FN132] They acknowledge, however, that "(k)nowing with any degree of assurance to what extent a variety of potential causal factors was operative in the fur slump is enormously difficult." [FN133] Moreover, they observe that "at the same time that the (fur) market is very bad, the fur industry in the United States is also undergoing some changes that may have profound implications for the anti-fur movement." [FN134] Finsen and Finsen cite the widespread opening of foreign markets for fur, especially in Japan, and "even more ominous," they point to the increase in imported fur coats and the emergence of vertically-integrated companies, such as Jindo, a South Korean company, that manages all phases of the fur operation from ranching to retail selling. [FN135] In addition, cheaper furs made abroad, as well as excess supply in the United States, may create greater demand as prices inevitably fall.

Most Americans do not hunt and are opposed to recreational hunting, but animal advocates have failed to make any significant dent in this activity. Much of the public is still deluded by *434 erroneous claims that hunting is necessary to thin herds "humanely" and is unaware that federal and state agencies manipulate habitats "in order to maintain the 'maximum sustainable yield' for the hunters." [FN136] Moreover, hunters have succeeded in getting Congress and many state legislatures to enact "hunter harassment" laws that have been upheld as constitutional and that have the practical effect of chilling the speech of anti-hunting animal advocates. Finally, animals continue to be used for such things as pigeon shoots, rooster pulls, pig wrestling, mule diving, donkey basketball, captive-animal shoots, and motion pictures. [FN137]

Any attempt to "reform" animal exploitation must confront the property status of animals. Animal welfare laws require that we balance the interests of humans and nonhumans in order to determine whether particular treatment is "humane" or whether suffering is "necessary." The problem is that this balancing structure serves to obscure an important normative consideration that renders empty any such attempt to balance human and animal interests. Under the law, animals are things; they are regarded as property.

The legal systems of most western nations are dualistic and contain two primary types of entities: persons and property. Most legal scholars claim that legal relations can exist only between persons and that property cannot have rights. For example, according to Jeremy Waldron, property "cannot have rights or duties or be bound by or recognize rules." [FN138]

*435 The class of "persons" is not limited to human beings; corporations and other non-natural entities are regarded under the law as "persons" for purposes of owning property and carrying out various activities. Property owners are entitled under laws of property to convey or to sell their animals, consume or kill them, use them as collateral, obtain their natural dividends, and exclude others from interfering with their exercise of dominion or control over their animals. Of course, this is not to say that the law cannot and does not restrict the use of animal property. Indeed, the law regulates the use of virtually all types of property, including animal property. Whether those restrictions have the actual or the intended result of providing protection for animals is another question and is discussed below. In any event, as far as the law is concerned, animals are property; legally regarded only as means to the ends of persons.

When humans seek to exploit animals for food, science, entertainment, clothing, or any other purpose, there is an obvious conflict between the interests of the animals and the interests of the humans who seek to exploit those animals. The law, which embodies a welfarist approach, requires that we balance the human and animal interests in order to determine which interest is more important. But this supposed balancing process prescribed by animal welfare theory is defective because it requires that we balance completely dissimilar normative entities.

Human interests are protected by rights in general and by the right to own property in particular. Animals have no legal rights, and are regarded as the property of humans. As far as the law is concerned, it is as if we were resolving a conflict between a person and her shoe. The winner of the dispute is predetermined by the way in which the conflicting parties are characterized under the law.

When we balance animal interests against human interests, the animal interest virtually never prevails precisely because of this "hybrid" system that requires that we juxtapose the *436 interests of a rightholder with that of a nonrightholder. The latter is also the object of the rightholder's exercise of her property rights. As property, animals are chattels, just as slaves once were. And, just as in the case of human slaves, virtually any interest possessed by animals can be "sacrificed" or traded away as long as the human benefit is sufficient.

Numerous laws prohibit "unnecessary" suffering, or require that we treat animals "humanely," but humans are nevertheless allowed to use animals not only for experiments or as food, but for pigeon shoots, rodeos, donkey basketball, carriage rides in the middle of a congested city, or as exhibits in zoos. All of these uses of animals are "unnecessary."

Indeed, very few health care professionals still maintain that animal products are "necessary" for a healthy diet. An increasing number of such professionals claim that the consumption by humans of animal products presents serious health risks. Nevertheless, animal agriculture, which accounts for the largest institutionalized use of animals, and other activities, which account for fewer animals but nevertheless result in the imposition on animals of hideous pain and suffering, are permitted under the very laws that prohibit the infliction of "unnecessary" suffering and require the "humane" treatment of animals.

Legal standards that concern the "humane" treatment of animals, or the prevention of "unnecessary" pain, assume that the human hegemony over animals is legitimate in the first instance, and that the only issue is how this power is going to be exercised. The law assumes that animals are "things," and that "things" exist primarily to satisfy the needs and wants of persons. The only question is whether, and under what circumstances, the law will interfere with property use in light of the importance of property as a social institution, and the belief, which is very strong in most western legal systems, that the owners of property should be left alone to the furthest extent possible to determine the uses to which their property is put. The result is that--despite the almost universally accepted moral maxim that any "unnecessary" animal suffering ought to be prohibited--the balancing system prescribed by animal welfare laws ensures that virtually any use of animals is deemed to be "necessary" irrespective of the trivial nature of the human interest involved or the serious nature of the animal *437 interest that will be "sacrificed."

Under such a scenario, notions like "humane" treatment, or "unnecessary" suffering, are not interpreted by reference to some moral ideal, but instead, are usually limited to what will best facilitate the exploitation of animal property. For example, scientists have on numerous occasions conducted experiments in which they subject conscious, unanesthetized animals to intense degrees of heat, supposedly in order to learn about burns. Indeed, I have a video that I show to law students that depicts an actual federally-funded experiment at a prestigious institution in which experimenters burn a large portion of the body of a conscious, unanesthetized pig in order to study the effects of the pig's subsequent eating habits. This is not considered "cruel" or "unnecessary" because it facilitates an institutionalized form of exploitation that is considered legitimate.

The question of whether the conduct is "necessary" is not decided by reference to some moral ideal, but with respect to its character as facilitating a form of exploitation that, normatively, has already been deemed to be legitimate. If, however, a non-scientist performs the exact same act, the act may be punished (with a relatively minor sanction under the most punitive scenario) as "cruel." This is not because the actions in the two cases are different--indeed, there is no difference in the quality of treatment between the cases--but because the action by the non-scientist does not facilitate the exploitation of the animal for "legitimate" institutionalized use. The only difference between the two situations is that in the first instance, the people who exploit animals (who are in most cases also the owners of those animals) determine that there are benefits to that animal use and the law regards that determination as acceptable.

If "cruelty" or the "necessity" of pain, suffering or death are determined not by whether the conduct violates some abstract standard, but by whether the owners of animals think that there are benefits that will come from such use, then, unless the property owners are not acting rationally in that they have failed to maximize the value of their animal property, the owners will in all cases think that their conduct is justified. It is their property, and they are using their property in the most cost-effective way in order to maximize its value.

*438C. Animal Rights Theory: Is it Utopian?

Many new welfarists pursue welfarist reform because they claim that rights theory is incapable of providing any practical program for incremental change. This claimed inability of rights theory supposedly follows from the fact that rights theory requires the abolition of animal exploitation. It is simply not realistic to advocate the immediate abolition of animal use as a program for change. [FN139] Therefore, we must pursue welfarist reform and follow Singer's counsel to endorse "any legislation that reduces the suffering of animals or enables them to meet their needs more fully." [FN140]

Virtually no animal rights advocate urges the immediate abolition of institutionalized animal exploitation as a realistic goal. The exploitation of nonhumans is deeply ingrained in our culture, and our economy is heavily dependent on animal exploitation with animal agriculture being the largest national industry. Some animal advocates argue that the rights position should focus more on educating the public on the need to abolish the exploitation of animals than on pursuing legislative or judicial change in light of the property status of animals. But none advocates immediate abolition as any sort of goal. Incremental change is inevitable. Based on the structural defects *439 of animal welfare, there are probably some compelling reasons for an animal rights advocate to spend her limited time and resources more on incremental change in the form of education, protest, and economic boycotts, and less on any sort of judicial or legislative change.

The primary reason is that judicial or legislative change sought by formal "campaigns" requires some sort of "insider" status. According to Garner, once an animal advocacy group decides to pursue activity other than public education, or, more precisely, once the group decides that it wants to have an effect on legislation or regulatory policy, it becomes necessary to decide whether to seek "insider" status in order to "achieve access to government" and "to influence policy makers." [FN141] Garner states that it "is easy to see why insider status is valued so highly. Access to government gives groups an opportunity to influence policy development at the formulation stage, thereby avoiding the difficult and often fruitless task of reacting against government proposals" which "are unlikely to change fundamentally" once they are formulated. [FN142] Garner recognizes that this "insider" status may be used to marginalize animal advocates through, for example, the creation of government advisory bodies that do little if anything but give the mistaken impression that animal concerns are being taken seriously. Nevertheless, he holds to the view that "insider status can allow pressure groups to have a significant input into the formulation of public policy. This insider status, however, is largely dependent upon a group being perceived by government as moderate and respectable." [FN143] Garner observes that although moderation and respectability are relative terms, "it is clear that the radical demands of the .rights' faction of the animal protection movement are not regarded as accept able enough" to give rights advocates "insider" status. [FN144] Garner argues that "insider" status is necessary for animal advocates to be effective, yet states explicitly throughout his book that despite the fact that moderate animal welfarists have enjoyed "insider" status, "the animal protection movement has *440 made relatively little progress in influence decision makers." [FN145]

Garner assumes that "insider" status is desirable although he acknowledges that "(t)here is a danger here of giving the impression that all forms of insider dealings with the government are valuable;" [FN146] he recognizes that groups may be compromised seriously by efforts to achieve such status, yet he assumes that "(t)here are advantages in the compromise approach." [FN147] The two primary examples of such advantages that Garner sees are "improvements in the way animals are treated . . . in the short term" and the possibility that there would be "fewer and weaker animal protection measures" in the absence of such compromise. [FN148] Indeed, Garner dismisses the notion that anyone would not want to achieve access to government even if they will not admit as much. [FN149] He remarks that "(s)ome groups might want to be outsiders, as no doubt some motorists might want to drive a ten-year-old car." [FN150]

But whether or not to pursue "insider" status, as Garner understands that notion, is at least one of the issues that needs further consideration: should the advocate of animal rights seek "insider" status when, as Garner acknowledges, such status comes only when the animal rights advocate is willing to be "moderate" in demand and "respectable" in presentation? It is, of course, not particularly difficult to under stand why "insider" status is particularly problematic when considered in the context of animal rights theory. "Insider" status requires negotiation and compromise with those on the inside of government in the legislative and executive branches. Again, no one seriously doubts that one of government's primary functions, especially in a capitalistic economy, is to protect property rights. And animals are a most important species of property. It is very unlikely that any society with very strong *441 property notions [FN151] can ever afford to compromise property rights for solely or primarily moral concerns.

There is a fundamental political difference between the rights position and the welfare position. The rights position is essentially an outsider position; it is the position of social protest that challenges basic social institutions that have facilitated the exploitation of nonhumans. Animal welfare does not require fundamental changes in industries that exploit animals, while the ethic of animal rights clearly does. Rights advocates are trying to change--and in many cases ultimately to completely end the operation of institutionalized animal exploiters. The welfarist is an insider who seeks to influence the system from the inside as one of the participants in the system. When Garner makes the observation that those who accept the status of being outsiders are like those who claim to be content to drive ten-year-old automobiles, he fails to under stand that for at least some people, a choice about fundamental moral issues is different from a decision about automobiles.

In any event, this inquiry raises a difficult conceptual question: Assuming that the animal rights advocate wants to support incremental change in the form of legislation or other legal changes, can she do so consistently with the acceptance of rights theory, which requires the abolition of institutionalized exploitation? In an earlier work, this author phrased the question as whether, short of abolishing the status of animals as property, we can have a "pluralistic system that characterizes animals as property but recognizes rights-type concepts on some level." [FN152]

We cannot meaningfully speak of legal rights for animals as long as animals are regarded as property. As long as animals are regarded as property, then their basic rights, or those rights that are a prerequisite for the enjoyment of other, non-basic rights, can be sacrificed as long as some socially recognized *442 "benefit" is found to exist. [FN153] As long as we can kill animals for food, or use them in experiments, or imprison them for their entire lives in cages so that we can be amused at zoos, or maim them for our amusement in rodeos, or shoot them for fun at yearly pigeon shoots, we are using "rights" "in some merely legalistic or otherwise abstract sense compatible with being unable to make any use of the substance of that right." [FN154] Basic rights are a prerequisite to the enjoyment of non-basic rights, and the possession of non-basic rights in the absence of basic rights is meaningless.

Critics will respond that every movement achieves rights incrementally. For example, Henry Spira "notes that in social movements, progress is made incrementally, through continual reform. (He states) (i)f you push for all or nothing, what you get is nothing."' [FN155] Spira attempts to compare incremental progress made in other social movements to incremental progress made toward the abolition of animal exploitation. This attempt must fail for the reason that no other situation, other *443 than slavery, is comparable with respect to the baseline protection afforded to animals. When we talk about incremental progress made in other social movements, we are talking about rightholders who seek greater rights protection.

For example, improved labor conditions for factory workers operate in the context of actors who already have basic rights that are sought to be extended. Put simply, we do not just arbitrarily kill and eat factory workers. Although interests may be balanced, some interests, such as the right of the worker not to be arbitrarily killed by the boss, cannot be traded away because those interests simply are not on the table. However, because animal interests are treated in a completely instrumental manner that sacrifices all animal interests if animal owners decide that there is a benefit in doing so, the animal will virtually always receive the short end of the stick. Moreover, we will always presume that property owners are the best judge of whether a particular use of their property, including their animal property, will be a "benefit" to them.

Furthermore, once we have persons who are at least holders of basic rights, it makes sense to talk about making incremental reforms in rights. Yet, the basic right not to be treated as property is a right that does not and cannot admit of degrees at least in this sense. Indeed, the issue is not whether we can achieve animal rights incrementally, but whether we can incrementally eradicate the property status of animals. In a sense, we are really only talking about one right--the right not to be treated as property. [FN156] A recognition of the validity of this single right would compel the conclusion that institutionalized animal exploitation violates principles of justice. More importantly, this violation is tolerated only as long as animals are classified as property, which gives humans license to ignore the basic similarities between humans and nonhumans relevant for attribution of the status of being a subject-of-a-life.

Although rights theory does not really concern the particular rights that animals have, it asks whether animals should be in the class of rightholders. Answering this question in the affirmative *444 does not commit the rights advocate to particular animal rights beyond the right to respectful treatment. This precludes institutionalized exploitation, but does not address much beyond that basic right not to be regarded as property, or in Regan's language, not to be treated exclusively as a means to an end.

Institutionalized animal exploitation is structurally similar to American slavery. Slaves were regarded as the property of their masters, but for purposes of responsibility under criminal law, slaves were regarded as persons. Although there were supposedly laws that protected slaves from particular types of treatment, such as "excessive" beatings or "unnecessary" punishment, the law usually assumed that the master was the best judge of how slave property ought to be used and that the master would act in a self-interested way with respect to that property. Indeed, Virginia had a law that a master who killed a slave as part of disciplining the slave could not have been said to have acted with malice (a prerequisite for a murder conviction) because of a presumption that the master would not intentionally destroy the master's own property. [FN157]

Whether slaves should have rights is an entirely different question from what rights slaves ought to have. To say that slavery should be abolished is nothing more or less than to maintain that slaves should be removed from the class of legal entities known as things and placed instead in the class of legal entities known as persons. To do so would mean that people who were formerly regarded as things that could not have non-basic rights can now have these rights; however, it does not specify the content of such rights. Society may agree that slavery should be abolished, but may disagree that former slaves should be given non-basic rights such as a right to a certain level of material wealth. For these reasons, we cannot really talk about animals' rights, as long as animals are regarded as property.

The rationale that property cannot have rights follows from *445 what it is to be property. The dualistic nature of our legal system recognizes that there are persons and property. Property is defined as that which cannot have relations with other property or with persons. We can be responsible for property, but not to property for our acts. In the former case, a person may be responsible for the use to which my property is put, but her duties are owed to other persons, and not to the property. As a matter of law, property is regarded as constituting means to ends selected by human owners and subject to some degree of state regulation.

To the extent that the law recognizes that animals have interests, those interests are recognized only to the extent that they facilitate the use of the animal as property. The status of animals as property accounts in part for the reason why courts have struggled with the status of anticruelty laws, claiming that, for the most part, the duty not to be cruel is usually thought to be owed to other persons. Similarly, courts interpreted laws prohibiting certain types of slave punishment as protecting "public decency" and not any interests of the slave.

To be property means that the "thing" possesses no interests of its own; to the extent that the law recognizes that the "thing" has interests, these interests may be sacrificed if the property owner thinks it to be in her interest, subject only to any legal regulation of the property, which generally protects the owner's interests and seeks to ensure that the value of property is not diminished. Any "rights" that we presently recognize do not constitute any concession that animals have interests that cannot be traded, as is the case when we are discussing human rights.

As indicated at the outset of this Article, the idea of a right is to recognize an interest that cannot be sacrificed (at least not easily), even though it might benefit others to sacrifice the interest protected by the right. But as long as animals are property, by definition, they have no interests that are protected in this way. They have no relationship with persons that entitles them to protection from those persons at all costs be cause, as property, animals exist as means to the ends of human owners--and nothing more.

Despite the argument that it does not make sense to talk about animals having rights in a society in which they are regarded as property, my reservation is related to the notion *446 that under the animal welfare paradigm, which currently regulates the human/animal relationship, any animal interests that are recognized will almost always be subject to being sacrificed in the face of even trivial human interests. The only way that this will change is if the characterization of animals as property changes, and moves closer to personhood--which is another way of saying that animals cannot have any non-basic rights until they get the basic right of not being regarded exclusively as means to human ends.

The question then becomes whether there is a way that this right--the right not to be regarded as property--the right to be a holder of other rights--can be achieved incrementally in a manner that is consistent with animal rights theory. This issue can be rephrased as whether there is any way to incrementally change the legal status of animals that is consistent with rights theory. As argued above, one thing that the rights advocate cannot do is use welfare reforms to achieve this goal incrementally because such reforms, which necessarily assume the legitimacy of the property status of animals, only reinforce the property characterization, and cannot create rights in animals.

Footnotes

3. Origins of New Welfarism                 5. An Incremental Approach