animal law

Proposition 2 and online debates

California’s Proposition 2 has stirred up plenty of controversy, both between the animal exploitation industries and the animal protection industry, and between animal advocates.

Proposition 2, a ballot initiative that will be voted on this November, is intended to eliminate certain confinement practices used by animal agribusiness, albeit with some exemptions. Basically it would require that, for the majority of each day, calves, egg-laying hens, and pregnant pigs be confined only in ways that would allow them to lie down, stand up, fully extend their limbs, and turn around freely. In other words, it doesn’t eliminate confinement systems; it merely modifies some of them to be slightly less restrictive (in the case of California, this mainly affects egg production). Exceptions are built in for seven-days prior to a pregnant pig’s expected date of delivery, and for 4-H programs, rodeos, fairs, research, veterinary purposes, slaughter, and transportation. Violations of the regulations would be misdemeanors, restricting the potential fine to $1,000 and/or imprisonment up to 180 days.

Recognizing the disagreement between different types of animal advocates over Proposition 2, Doris Lin, the host of About.com‘s new animal rights topic, is hosting a debate on Proposition 2. Professor Gary L. Francione, author and abolitionist animal rights proponent, represents the con argument, while the the pro argument is offered by animal welfare proponent Paul Shapiro, the Senior Director of the Humane Society of the United States‘ Factory Farming Campaign. Shapiro calls the ballot measure Making History for Animals, while Francione calls it A Losing Proposition. Of course, it’s a strange debate because there’s no real back and forth between the two debaters, not to mention the fact that HSUS’s mission is modifying animal use, not abolishing it.

While you’re off reading online debates, you might be interested in some other topics hosted by Opposing Views. The site asks a lot of controversial questions, not just animal-related issues, and it seems to be fairly well designed and easy to navigate. In addition to calling on “experts” (mostly special interest groups) to debate the subject, Opposing Views invites your comments, involving you directly in the debate. The issue of “pet” ownership finds Francione and HSUS in opposition once again. You can also read their arguments and the arguments of other “experts” on a variety of related topics, including using animals in research, keeping animals in zoos, and “meat”-eating. There’s no debate on Proposition 2 over there as of yet, but they do take suggestions for topics, and maybe Opposing Views would provide a better format for that debate than the statements offered at About.com, seeing as how it allows for counterpoint and objections.

Back to Proposition 2, of course the animal exploiting industries are totally opposed. They don’t want animal advocates making any inroads on regulating how they use animals. They see the measure potentially leading to other regulatory reforms around the country, so they have more or less united in their opposition to it.

Seems intuitive how an animal-friendly person might vote, right? Well, consider that this measure does not come close to questioning animal use; it merely modifies how animals are used in such a way as to make it seem somewhat less objectionable. Also consider the following:

1. Veal crates and gestation crates (for pigs) have already been phased out or are being phased out by the industries in California as this debate goes on. At this time, there is no indication that doing so is harming the industries or reducing consumption of flesh products from calves and pigs.

2. Proposition 2’s regulations apply only to producers in California. It is not a ban on products produced using these methods. Stores seeking less expensive eggs to sell their customers may buy them from out-of-state producers, and egg companies that don’t want to follow the new regulations can move their operations out of state.

3. Proposition 2 does not end the confinement and torture of animals from their artificially-induced births to their untimely killings. If successful, sustained, followed, and enforced, Prop 2 will only allow certain animals a bit more space to move and adjust their position while they are being confined, and for only part of the day. Even then, all bets are off during transport and slaughter. It does not address the myriad other harms caused to animals throughout the production process.

4. Egg production systems in Europe have gone cage-free, and the barn systems they are using there have even received a seal of approval from the Royal Society for the Protection of Animals, which leads consumers to believe that the animals’ welfare is being given top priority. The video below shows that there are plenty of problems inherent in cage-free systems.

What do you make of all this debate over Prop 2? What do you make of the proposition itself? Share your comments below

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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 Philly.com (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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Rethinking pets as property

An article in the Los Angeles Times considering the aftermath of the massive pet food recall asks: A dog’s life: What’s it worth?. Of course, the story focuses on cats, too, but the point is, with the threat of lawsuits somewhat negated by the property status of animals, this incident provides the most thought-provoking examination of our relationship with domesticated animals since Hurricane Katrina.

Animals are more a part of our lives than ever, and many people are making closer connections with their companions than some skeptics imagine to be possible. One elderly couple in Hyderabad, India even went so far as to commit suicide after losing their “only child,” their dog companion whose death they apparently could not overcome. While this may be a particularly alarming example of devotion to one’s non-human companions, it’s not uncommon for U.S. citizens to consider dogs and cats (rabbits, ferrets and others, too) part of their family.

Unfortunately, when an animal is killed, the law treats animals as personal property, hardly different from the laptop computer upon which I am currently typing. It seems almost insane that this is still the case, when it is readily apparent that animals are autonomous sentient beings rather than merely objects, yet it takes major incidents like the food recall to force this conversation to the table and to get The Los Angeles Times to publish articles that deliberate the issue seriously, noting that pet “owners” seem more and more to expect damages for emotional distress in lawsuits against those who harm their companions. [Jon] Katz calls this “a seismic shift in humans’ relationship to pets that has occurred in recent decades.”

Unfortunately, the story’s writers quote this author and others critical of this shift liberally in the closing paragraphs, ending the article on a rather negative note:

As far as Katz is concerned, those human-pet bonds can be too intense. He’s troubled by people who consider their pets “fur children” or insist that losing a pet is similar to losing a child.

“As the father of a child and a dog lover, I know it’s not the same thing,” he said.

Bob Vetere, president of the American Pet Products Manufacturers Assn., a Greenwich, Conn.-based trade group, calls the pets-as-people trend “nonsense.” Vetere, a dog owner himself, said, “That guardianship stuff drives me crazy because there’s so much confusion that will result.”

For Barry Baum, a West Los Angeles veterinarian, the worry is that the legal changes regarding animals’ status could translate into higher malpractice insurance premiums. “More insidious,” he added, “will be the need to practice more defensively.” That may mean doing more tests on a pet and hiking the owner’s bill.

Giving animals a human-like legal identity might lead to higher liability awards if, for instance, a dog chokes on a chew toy, an airline misroutes a cat or an animal dies in a car accident, said law instructor Calnan. He also worries that “parties who want to represent the rights of pets could step in and object to euthanasia.”

Said Katz, “I don’t think people have thought through the consequences here.”

I can think of a number of people who might disagree and, in fact, the writers point to a 2004 survey in which half of North American pet “owners” responded that, if they were stranded on a desert island, they would pick a dog or cat as their sole companion rather than a person. I imagine most if not all of those people are single, or simply aren’t as happily married as I am, but I can certainly see where they are coming from!

Elephants Have Equal Value to Humans, India Court Rules

India has a strange relationship with animals. On one hand, an Indian high court has ruled that an elephant is a “living creature equivalent to a human being.” On the other hand, the £6,850 in compensation for her death by automobile was awarded to the Indian that owned Babli the elephant and used her to support his family by providing scenic tours through Jaipur to as a professional mahout.

Note that, unlike most U.S. stories about animals, nowhere in the article is Babli referred to as “it.”