Month: July 2008

Letter published in the Washington Post

I wrote a letter to the Washington Post in response to Wednesday’s article, A Dish That Gets a Fuzzy Reception. That letter, which they called Those Rabbits: Friend or Food?, was published today, FYI.

From the article:

Chef Stefano Frigerio braces himself when he puts rabbit on the menu at Mio. It’s only a matter of time before someone complains.

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Animal Rights 101, part four: Property Status

Property status

Humans have long dominated animals, including wild (or “free-living”) animals, treating them as if they were our property since well before our laws formally defined them as such. Over time, our sense of entitlement to use animals as things for our benefit became firmly embedded in our culture. Indeed, it was animals’ de facto property status that led to them being legally classified as property to begin with.

This deeply entrenched property status is the key obstacle to securing legal rights for nonhuman animals because, as long as humans perceive nonhumans to be property, we will be unable to abolish their legal property status. As mentioned in my previous post, property cannot possess legal rights, only persons can.

Persons are the humans, corporations, and other institutions endowed with rights by law, including the right to own and use property as a means to some recognized end. For instance, a person’s bicycle is a means for her to travel from one place to another. That bicycle belongs to her, and she may use or not use it as she sees fit. Because the bicycle is an inanimate object, it is not sentient, and therefore it has no interests for her to take into consideration.

Unlike bicycles and all other inanimate objects, sentient animals do have interests that merit consideration, and this presents us with our problem: Because they are legally classified as property that humans may use as a means to any recognized end, just like inanimate objects such as bicycles, they are prevented from possessing any legal rights that would protect their interests.

Legal welfarism

In lieu of legal rights, numerous welfare laws and anticruelty statutes have been enacted over the past 200 years or so, with the intent of protecting at least one very important animal interest that humans have recognized as significant enough to be given our consideration: that of not being made to suffer. To avoid causing animals “unnecessary” suffering in the course of our using them as means to our ends, welfare laws seek to ensure that persons treat animals “humanely.” “Necessity” is evaluated by balancing human interests against the interests of animals in a given scenario.

Gary L. Francione identifies the futility of this balancing act in Animals, Property, and the Law:

…although the law prohibits the infliction of “unnecessary” pain and suffering on animals and requires that they be treated “humanely,” these terms are interpreted in light of the legal status of animals as property, the importance of property in our culture, and the general tendency of legal doctrine to protect and to maximize the value of property. (p. 4)

In other words, as long as animals are regarded as the property of humans, their interests will never count for as much as legally protected human interests, and so the scale will be rigged in favor of humans before the balancing has even begun. Despite the existence of myriad animal welfare laws and cruelty statutes intended to protect animals from suffering, then, animals’ interests remain more or less unprotected. Without legal rights, even an animal’s most significant interests cannot be protected from being traded away in favor of any trivial human interest so long as that human interest is in some recognized end (see Legal welfarism illustrated, below, for an example).

Francione calls this entire framework “legal welfarism.” Unlike rights theory, which regards every animal as an end, legal welfarism regards nonhuman animals solely as a means to some end (“food animals,” “lab animals,” “game animals,” “fur animals,” “companion animals,” “animal actors,” etc.). Presuming from the outset that animals are property for us to use, legal welfarism asks only that we determine whether or not an animal is being treated “humanely” in the course of being exploited–and provides them with only that level of protection that facilitates humans using them as a means to their recognized ends, e.g., advancing scientific knowledge, producing food, and so on. As Francione suggests, “The only activities that remain to be prohibited by such statutes are those where no socially recognized benefit can be traced to the animal killing or suffering.” (p. 129)

Legal welfarism illustrated

To illustrate legal welfarism in effect, let’s examine a couple of hypothetical scenarios involving the use of a cow. Bear in mind throughout that the cow has an interest in not being used as property precisely to avoid being the victim in either of these hypothical scenarios in the first place.

Now, to determine whether or not an activity would be prohibited by an anticruelty statute, we must break the question of “necessary” suffering into two parts (See Figure 1, below). Part 1 asks whether the end is recognized, i.e., whether or not using the cow provides some recognized human benefit. If the end is, say, “satisfying a teenager’s sadistic interests,” the answer for Scenario 1 is “No.” The law does not recognize the end of satisfying one’s sadistic intersts as providing some human benefit–quite the contrary. Regardless of the teenager’s exact plans for the cow, any suffering he causes the cow in the end of satisfying his sadistic interests will be considered “unnecessary,” and is thus prohibited.

Case closed. On to Scenario 2.

If the end in question is “using a cow for the purpose of food, clothing (or some other recognized end),” then the answer to Part 1 under the legal welfarism paradigm would be “Yes.” While the cow has the exact same interest in not suffering as in Scenario 1, the law recognizes that producing food and clothing provides a human benefit, and so it is determined that this activity or end is “necessary.” The cow’s interest is effectively trumped, and so we move on to Part 2.

Part 2 asks whether the means the cow’s owner employs to the end of using a cow to produce food or clothing is consistent with that end. If the cow’s owner lets her starve due to neglect, then the owner will have caused “unnecessary” suffering. Neglect is therefore prohibited. Starving one’s cow is not consistent with the end of using that cow to produce food or clothing. It’s a pointless “waste.”

On the other hand, if a cow experiences suffering in the course of being used as a means to the end of producing food and clothing for human benefit, that suffering is considered “necessary” so long as the suffering is the result of a standard industry practice. Of course, the law also recognizes as “necessary” the death of the cow as a means to achieving the recognized end of feeding and clothing humans, despite the cow’s demonstrable interest in staying alive.

The law will rule as “unnecessary” only that suffering which does not conflict with the animal owner’s ability to exploit an animal efficiently. Generally, however, the law will defer to property owners when determining whether or not a certain activity is necessary.

It’s generally assumed under the legal welfarism paradigm that a property owner wouldn’t intentionally devalue his property by causing that property “unnecessary” suffering. Therefore, whatever suffering the owner does incur must be “necessary” to increase the value of the property or maximize the benefits of that use for humans.

What about “wild” animals?

Though many nonhuman animals are born free in nature, as non-persons they still do not have a legal right not to be property. Though they may not technically be property, they are still regarded as if they are property (e.g., as mere things, or potential property), and our laws allow humans to “convert” certain wild animals into their personal property through the act of hunting and capturing or killing those animals.

All animals’ interests may be traded away in favor of human interests as long as they are not protected by legal rights. And, even though some animals aren’t technically personal property, their property status always tips the scale in favor of human interests, as if they were in fact property.


As long as animals are regarded as property, the balancing of animal and human interests is futile. The only way to balance the scales–to honestly give the like interests of humans and nonhumans equal consideration–is to give animals legal rights that protect their interests, too. Then we’ll be on a level playing field. But if we ever want to see this happen, we must first abolish their property status–starting with the very perception that it is acceptable to use animals as if they were property.

Next post: Utilitarianism

Previous post: Animal Rights

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Animal Rights 101, part three: Animal Rights


As with the term “rights,” there is a great deal of confusion about the term “animal rights.” Much of this confusion has been caused not just by the media and the industries that exploit nonhuman animals, but also by activists and animal advocacy groups using the term to loosely describe any actions purported to improve the conditions of animals used by humans. In other words, rather than promoting the moral or legal rights of animals, some so-called “animal rights activists” focus on regulating animal welfare–how animals are treated.

Further confusing the issue, some animal rights activists seek legal rights for only a select category of sentient nonhuman animals (such as great apes), based on characteristics such as higher-order cognitive abilities. The rights theory I put forth here–laid out in far greater detail in Gary L. Francione’s highly recommended Introduction to Animal Rights: Your Child or the Dog?–holds that any sentient being has at least one basic moral right simply by virtue of that being’s sentience: The right not be treated merely as a means to another’s end.


To be sentient is to be conscious or self-aware, capable of perception or feeling. Sentient humans and nonhumans feel sensations of pain, pleasure and so on. When a being is sentient, s/he will naturally have interests. For instance, the capacity for sentient beings to feel pain provides them with a clear interest in not feeling pain.

In recognition of this particular interest, we generally consider it unacceptable to inflict pain on another sentient being unless there is an extraordinarily good reason. Take the example of a boy who harms a nonhuman simply to satisfy his morbid curiosity. He straps an ordinary dog down on a table and cuts her open to have a look inside. As he does this, the dog yelps, howls, and struggles, but the boy keeps cutting, ignoring her cries.

I think it’s safe to assume we all find the boy’s behavior objectionable. Various reasons may be offered for this, from our concern that the boy has psychological problems–and that these problems could lead to him harm other humans some day–to our concern that the dog might belong to another human who has an emotional attachment to her. But these are not the fundamental reasons for our objection. We are upset by the example because we recognize that the boy is causing the dog unnecessary pain.

If the dog was not sentient, then she wouldn’t have an interest in not being caused pain (because non-sentient beings are unable to sense pain), and so there would be no harm done. But, of course, we know that the dog is sentient, and we know that the boy’s actions cause her much pain.

Now, if we were to agree that the pain was for some justifiable reason necessary, we might be distressed by what is being done to the dog, but we would not object to it as a moral matter. For instance, if the boy was attacked by the dog and killed her to protect himself from a similar fate, we might be saddened by her death, but we would say that it was justified in this particular situation. However, it cannot be reasonably held that the boy needs to harm the dog merely to satisfy his curiosity.

This example illustrates how, as long as a being is sentient, we recognize–as a moral matter–that the being has an interest in not being harmed, which cannot be ignored or overridden unless it is truly necessary to do so. This belief is based on no other characteristic than the being’s ability to feel that pain. No other characteristics beyond sentience are necessary to merit moral consideration.

Equal Consideration

The principle of equal consideration holds that, as a basic moral matter, we ought to treat like cases alike. Viewed in terms of interests, the principle requires that the like interests of various beings must be given equal consideration. As described above, nonhumans and humans are alike in at least one important, morally relevant respect: they are sentient and, as such, they have interests that must be considered. Extending the principle of equal consideration to all sentient beings requires that we give nonhumans’ interests equal weight to humans’ interests. Where our interests are the same, we must weigh them equally.

So how does this work?

Let’s examine a simple case involving humans. Morally, we disapprove of killing other humans without justification (e.g., self defense). This is because we recognize that human beings have an interest in not being killed. We take this interest very seriously, protecting it with a legal right. A person’s interest in not being killed does not derive from skin color, sex, or cognitive abilities. When we give equal weight to the interests of white and black people, people of any sex or intelligence level, we recognize that they all have an equal interest in continued existence, and we accept that we might protect this interest equally.

Species is not the basis for an interest in continued existence, either. Humans do not have an interest in continued existence because they are human, but because they are sentient. As previously discussed, all sentient beings have interests, including a fundamental interest in staying alive.1 According to the principle of equal consideration, to whatever extent we respect a human’s interest in not being killed, then we must also respect a nonhuman’s interest in not being killed. If we accept that a human’s interest in continued existence cannot be outweighed by another human’s interest in pleasure, then we must accept that a nonhuman’s interest in continued existence cannot by outweighed by a human’s interest in pleasure.

There is simply no non-arbitrary difference between humans and other animals that justifies treating their like interests differently.2 Remember, we accord equal consideration where our interests are alike. Because there is no characteristic possessed by sentient nonhumans that justifies giving their like interests less consideration than our own, they ought to be protected equally. This brings us to animal rights.

Animal Rights

Recall from my previous AR101 post that rights protect one’s interests against those who would disregard those interests. All sentient beings have interests, both human and nonhuman, and so they all belong in the moral community of rightholders. When we say that nonhuman animals have moral rights, we are basically acknowledging that some of their interests are like ours and that these interests must be given equal consideration to our own. So, if we have a moral right not be killed (even if it might benefit someone to kill us), then our understanding of the principle of equal consideration leads us to the conclusion that nonhuman animals have that moral right as well, as they have the exact same underlying interest.

As discussed previously, we expect that, at some point, legally defined rights will reflect the moral rights that we already accept. Moral and legal rights for animals, then, derive from the notion of equal consideration for their basic interests. Saying that animals have rights is the same as saying that animals are rightholders. It doesn’t necessarily say which rights animals have morally, and which they should be granted legally. Moral rights would, of course, become better understood as we begin to give the interests of nonhuman animals equal consideration. The expectation is that legal rights would follow along the same lines.

While we may not agree on all the specific moral rights possessed by sentient nonhuman animals, but there must be at least one fundamental moral right they hold if any other rights are to make sense: The right not be treated as a thing, as merely the means to another’s end. This must also be granted as a legal right if any other legal animal rights are going to mean anything. Nonhuman beings simply have no legal rights as long as they are regarded as property, i.e., a means to the ends of a person. Remember, property cannot have rights, only persons can.

In my next post, part four of AR101, I will discuss in more detail how property status relates to animal rights, along with its implications.

Next post: Property Status

Previous post: Rights

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1. Remember, if one is not sentient, one simply has no interests to speak of.
2. There are certainly some interests sentient beings do not have in common. For instance, nonhumans do not have a demonstrable interest in voting, bearing arms, and so on, and therefore we are not obligated to consider those interests. After all, you cannot give consideration to an interest if it does not exist.

William Saletan: The new hierarchy of GAP

Though this widely-reported news is nearly two weeks old now, I haven’t yet written about the Spanish parliamentary resolution to grant great apes the right to life and freedom. This is due in part to my posting schedule, but mainly I wanted to see how this all shook out. Then last week I heard about a piece by William Saletan at Slate that I wanted to read, which I finally remembered to do this morning when it reappeared at (via my news alerts) as an opinion piece.

Time to get to this one, I suppose.

The good news: It seems very likely that Spain will be the first national legislature to grant any animals the legal right to life and freedom.

The Great Ape Project, co-founded by philosopher Peter Singer, has been pursuing this goal for about 14 years now. Singer rejects the validity of moral rights (he’s an act–and presumably occasionally a rule–utilitarian) but he believes that certain animals should have legal rights in order to protect them from harm. At the GAP website, a news release states that, “Under most government structures, legal rights are the only way to insure that non-human great apes are free from torture, unnecessary death and capture.”

Of course, Spain is not about to turn loose the 315 great apes kept in its zoos, though evidently the law’s specifications would require dramatically improving conditions at 70 percent of them. Keeping apes for use in entertainment will be forbidden, backed by Spain’s penal code. As of now, there don’t appear to be any great apes being used for vivisection in Spain, but there are no laws to prevent that from happening, so the government will update the legal code to outlaw “harmful” experiments on apes in Spain. I haven’t been able to turn up the text of this resolution with a quick skim of Google results, but I think that last bit about “harmful” experiments is a some cause for concern. It seems to leave open the option to use great apes for non-invasive/non-“harmful” experiments (behavioral research?). So, with one caveat already noted, this is the good angle on the news.

The bad news: This leaves the vast majority of nonhuman animals completely in the lurch, still waiting at square one. Do we protect humans from torture, death, and restriction of liberty based on cognitive capacity? No, we legally protect all sentient humans with rights. Of course, this protection is generally exclusive to our own species, an arbitrary distinction when it comes to determining which beings merit legal protection for their moral rights. We don’t legally give some humans preferential protection from torture, death, and the restriction of liberty on the basis of race or sex, but for some reason we think it makes sense to discriminate against nonhumans simply because they are not human, even though they have the same interests we do in not being tortured, confined, or killed. GAP and others discriminate based on cognitive characteristics.

So, supposedly species membership would no longer be the key criterion for inclusion in the moral community, but GAP’s stance and Spain’s resolution still advance a hierarchy based on criteria unique to certain species, and which go well beyond the criteria necessary for moral consideration, i.e., sentience. As Saletan notably remarks, “the arguments GAP has deployed in Spain don’t advance the idea of equality among animals. They destroy it.” GAP and others claim that this is the point of a spear that has broken the species barrier, making it easier for other species to eventually be included within the sphere of legal rights protection. But how can far can this go if we base such rights on how similar animals’ cognitive capacities are to humans?

Modern conceptions of rights are generally egalitarian. We have extended fundamental legal rights to all humans, regardless of race, sex, or cognitive capacity. Notions of egalitarianism play directly into animal rights theory, which looks at the reasons for excluding nonhumans from legal rights protection and finds that there are some arbitrary distinctions that lead to grave inconsistencies.

When Tom Regan pioneered actual animal rights theory in The Case for Animal Rights, he focused on equality based on the inherent value of animals who are “subjects-of-a-life,” or that they have value in themselves unrelated to how they might be valued by others. If all animals have inherent value (humans and nonhumans alike), then they all have it equally, according to Regan, and they have the moral right not to be treated merely as a means to the end of others.

However, he did stop short of a totally egalitarian approach, requiring animals to meet certain cognitive criteria in order to reasonably be considered a rightholder. His subject-of-a-life requirement is not all that dissimilar from Singer’s notion that some animals value their lives more than others. Regan also believes that death is a greater harm for humans than for nonhumans. Both philosophers appear to accept that the more like humans nonhumans are, at least in terms of cognition, the more likely that the nonhumans in question are to qualify for protection for his or her interests. GAP perpetuates discrimination, according to Saletan:

GAP’s mission statement says great apes are entitled to rights based on their “morally significant characteristics.” It says they enjoy a rich emotional and cultural existence in which they experience emotions such as fear, anxiety and happiness. They share the intellectual capacity to create and use tools, learn and teach other languages. They remember their past and plan for their future. It is in recognition of these and other morally significant qualities that the Great Ape Project was founded.

Morally significant qualities. Morally significant characteristics. These are appeals to discrimination, not universal equality. Most animals don’t have a rich cultural life. They can’t make tools. They don’t teach languages.

Animal activists often take approaches like GAP to be tactical means to the end of extending rights to all animals some day (as points of spears and such), but this kind of thinking misses the mark. We don’t need to extend the hierarchy, we need to erase that hierarchy entirely. I’ll let Saletan’s conclusion, eloquent as it is, serve as my own:

George Orwell wrote the cruel finale to this tale 63 years ago in Animal Farm: “All animals are equal. But some animals are more equal than others.” That wasn’t how the egalitarian uprising in the book was supposed to turn out. It wasn’t how the animal rights movement was supposed to turn out, either.

FYI, I will publish my next AR101 post this week. In it, I discuss the concept of animal rights in more detail.

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Vegan Education Made Easy: An Abolitionist Pamphlet

Gary L. Francione just posted a self-produced vegan education pamphlet at his blog, The Abolitionist Approach. It’s a double-sided document, so it will be easy to reproduce and distribute. A lot of people have been clamoring for a resource like this, and now you finally have it, from the very person behind the abolitionist approach. If that’s not good enough for you, I don’t know what is! Get out there and spread the message far and wide.

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