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.
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.
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