How to Do Animal Rights: ...legally with confidence

Animal Rights as a Mainstream Phenomenon

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In Ontario, the environmental minister stopped a similar hunt by executive fiat in response to social ethical concern [ 5 ]. California abolished the hunting of mountain lions, and state fishery management agencies have been taking a hard look at catch-and-release programs on humane grounds [ 6 ]. According to the director of the American Quarter Horse Association, the number of state bills related to horse welfare filled a telephone-book-sized volume in alone [ 7 ].

Public sentiment for equine welfare in California carried a bill through the state legislature making the slaughter of horses or shipping of horses for slaughter a felony in that state and the end of horse slaughter in the U. Municipalities have passed ordinances ranging from the abolition of rodeos, circuses, and zoos to the protection of prairie dogs and, in the case of Cambridge, Massachusetts a biomedical Mecca , the strictest laws in the world regulating research.

Even more dramatic, perhaps, is the worldwide proliferation of laws to protect laboratory animals. In the United States, for example, two major pieces of legislation, which I helped draft and defend before Congress, regulating and constraining the use and treatment of animals in research were passed by the U. Congress in , despite vigorous opposition from the powerful biomedical research and medical lobbies. This opposition included well-financed, highly visible advertisements and media promotions indicating that human health and medical progress would be harmed by implementation of such legislation.

In , Britain superseded its pioneering act of with new laws aimed at strengthening public confidence in the welfare of experimental animals [ 8 ]. Research on Great Apes has been truncated across the world. Many animal uses seen as frivolous by the public have been abolished without legislation.

Legal Personhood and the Positive Rights of Wild Animals

Toxicological testing of cosmetics on animals has been truncated; companies such as the Body Shop have been wildly successful internationally by totally disavowing such testing, and free-range egg production is a growth industry across the Western world. Greyhound racing in the U.

Zoos that are little more than prisons for animals the state of the art during my youth have all but disappeared, and the very existence of zoos is being increasingly challenged, despite the public's unabashed love of seeing animals. And, as Gaskell and his associates' work has revealed [ 9 ], genetic engineering has been rejected in Europe not, as commonly believed, for reasons of risk but for reasons of ethics; in part for reasons of animal ethics.

Rodeos such as the Houston Livestock Show have, in essence, banned jerking of calves in roping, despite opposition from the Professional Rodeo Cowboys Association, who themselves never show the actual roping of a calf on national television. Inevitably, agriculture has felt the force of social concern with animal treatment—indeed, it is arguable that contemporary concern in society with the treatment of farm animals in modern production systems blazed the trail leading to a new ethic for animals.

As early as , British society took notice of what the public saw as an alarming tendency to industrialize animal agriculture by chartering the Brambell Commission, a group of scientists under the leadership of Sir Rogers Brambell, who affirmed that any agricultural system failing to meet the needs and natures of animals was morally unacceptable [ 10 ]. Though the Brambell Commission recommendations enjoyed no regulatory status, they served as a moral lighthouse for European social thought.

Much of northern Europe has followed suit, and the European Union is moving in a similar direction, and sow stalls must be eliminated in by [ 12 ].

My own work attests to this tendency. In , over two days of dialogue, I convinced Smithfield Farms, the world's largest pork producer, to phase out gestation crates. In , the Pew Commission, on which I served as the advocate for farm animal welfare, called for the end of high confinement animal agriculture within ten years, for reasons of animal welfare, environmental despoliation, human and animal health, and social justice. Most dramatically, I was able to broker an agreement between the Humane Society of the United States and the Colorado Livestock Association passing a jointly sponsored farm animal welfare law in Colorado in , abolishing sow stalls and veal crates.

The agriculture community in the U. There is one monumental conceptual error that is omnipresent in the agricultural industry's discussions of animal welfare—an error of such magnitude that it trivializes the industry's responses to ever-increasing societal concerns about the treatment of agricultural animals. Those of us serving on the Pew Commission, better known as the National Commission on Industrial Farm Animal Production, encountered this response regularly during our dealings with industry representatives.

This commission studied intensive animal agriculture in the U. Hoping to rectify the error in that comment, as well as educate the numerous industry representatives present, I responded to her as follows: But that is not the question the Commission, or society, is asking. What we are asking is, ought we raise swine in confinement? The concept of animal welfare is an ethical concept to which, once understood, science brings relevant data.

When we ask about an animal's welfare, or about a person's welfare, we are asking about what we owe the animal, and to what extent. Agricultural scientists in the early 's, discussed animal welfare, it affirmed that the necessary and sufficient conditions for attributing positive welfare to an animal were represented by the animals' productivity. A productive animal enjoyed positive welfare; a non-productive animal enjoyed poor welfare [ 14 ]. This notion was fraught with many difficulties. First of all, productivity is an economic notion predicated of a whole operation; welfare is predicated of individual animals.

An operation, such as caged laying hens may be quite profitable if the cages are severely over-crowded, yet the individual hens do not enjoy good welfare. Second, as we shall see, equating productivity and welfare is, to some significant extent, legitimate under husbandry conditions, where the producer does well if and only if the animals do well, and square pegs, as it were, are fitted into square holes with as little friction as possible as when pigs live outside.

Without these technologies, the animals could not be productive. We will return to the contrast between husbandry and industrial approaches to animal agriculture. The key point to recall here is that even if the CAST Report definition of animal welfare did not suffer from the difficulties we outlined, it is still an ethical concept. This in turn would imply that the animals are well-off if they have only food, water, and shelter, something the industry has sometimes asserted.

Even in the early 80's, however, there were animal advocates and others who would take a very different ethical stance on what we owe farm animals. Indeed, the famous five freedoms articulated in Britain by the Farm Animal Welfare Council during the 's even before the CAST Report represents quite a different ethical view of what we owe animals, when it affirms that:. The welfare of an animal includes its physical and mental state and we consider that good animal welfare implies both fitness and a sense of well-being. Any animal kept by man, must at least, be protected from unnecessary suffering.

Clearly, the two definitions contain very different notions of our moral obligation to animals and there is an indefinite number of other definitions. Which is correct, of course, cannot be decided by gathering facts or doing experiments—indeed which ethical framework one adopts will in fact determine the shape of science studying animal welfare. The role of your welfare science in this case will be to study what feed, bedding, temperature, etc. On the other hand, if you take the FAWC view of welfare, your efficiency will be constrained by the need to acknowledge the animal's natural behavior and mental state, and to assure that there is minimal pain, fear, distress and discomfort—not factors in the CAST view of welfare unless they have a negative impact on economic productivity.

Thus, in a real sense, sound science does not determine your concept of welfare; rather, your concept of welfare determines what counts as sound science!

Why Are Animals Used in Research?

The failure to recognize the inescapable ethical component in the concept of animal welfare leads inexorably to those holding different ethical views talking past each other. Animal advocates, on the other hand, give such factors primacy, and are totally unimpressed with how efficient or productive the system may be. A major question obviously arises here. It is to this issue we now turn. What is the nature of the emerging new ethical thinking that underlies and informs the dramatic social changes just discussed? Although society has always had an articulated ethic regarding animal treatment, that ethic has been very minimalistic, leaving most of the issue of animal treatment to people's personal ethic, rather than to the social ethic.

Since Biblical times, that limited social ethic has forbidden deliberate, willful, sadistic, deviant, purposeless, unnecessary infliction of pain and suffering on animals, or outrageous neglect, such as not feeding or watering. Beginning in the early nineteenth century, this set of prohibitions was articulated in the anti-cruelty statutes of the laws in all civilized societies [ 15 ].

But even in Biblical and medieval times, the social ethic inveighed against cruelty.

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The Old Testament injunctions against yoking an ox and an ass together to a plow, or muzzling the ox when it is being used to mill grain, or seething a calf in its mother's milk, all reflect concern with, and abhorrence for what the Rabbinical tradition called tsaar baalei chaiim ; the suffering of living things.

In the Middle Ages, St. Thomas Aquinas [ 16 ], while affirming that, lacking a soul, animals enjoyed no moral status, nonetheless strictly forbade cruelty, on the grounds that permitting such behavior towards animals would encourage its spreading to human beings, an insight buttressed by over two decades of recent research [ 17 ]. Numerous serial killers have evidenced early abusive behavior towards animals, as have many of the youths in the U.

For the overwhelming majority of human history, until some four decades ago, the anti-cruelty ethic served as the only socially articulated moral principle for animal treatment. What has occurred during the last half century which led to social disaffection with the venerable ethic of anti-cruelty and to strengthening of the anti-cruelty laws, which now make cruelty a felony in almost 40 states. In a study commissioned by USDA to answer this question, I distinguished a variety of social and conceptual reasons [ 18 ]:.

For virtually all of human history, animal agriculture was based foursquare in animal husbandry. Thus traditional agriculture was roughly a fair contract between humans and animals, with both sides being better off in virtue of the relationship. Husbandry agriculture was about putting square pegs into square holes, round pegs into round holes, and creating as little friction as possible doing so. So powerful is the notion of husbandry, in fact, that when the Psalmist seeks a metaphor for God's ideal relationship to humans, he seizes upon the shepherd in the 23rd Psalm:.

The Lord is my shepherd; I shall not want; He maketh me to lie down in green pastures; He leadeth me beside still waters; He restoreth my soul. We wish no more from God than what the husbandman provides for his sheep. In husbandry, a producer did well if and only if the animals did well, so productivity was tied to welfare. No social ethic was thus needed to ensure proper animal treatment; only the anti-cruelty designed to deal with sadists and psychopaths was needed to augment husbandry.

Self-interest virtually assured good treatment. After World War II, this beautiful contract was broken by humans. If a nineteenth century agriculturalist had tried to put , egg-laying hens in cages in a building, they all would have died of disease in a month; today such systems dominate.

The new approach to animal agriculture was not the result of cruelty, bad character or even insensitivity. It developed rather out of perfectly decent, prima facie plausible motives that were a product of dramatic significant historical and social upheavals that occurred after World War II. At that point in time, agricultural scientists and government officials became extremely concerned about supplying the public with cheap and plentiful food for a variety of reasons.

Second, reasonable predictions of urban and suburban encroachment on agricultural land were being made, with a resultant diminution of land for food production.

Fifth, projection of major population increases further fueled concern. When the above considerations of loss of land and diminution of agricultural labor are coupled with the rapid development of a variety of technological modalities relevant to agriculture during and after World War II and with the burgeoning belief in technologically-based economics of scale, it was probably inevitable that animal agriculture would become subject to industrialization. There is thus no question that industrialized agriculture, including animal agriculture, is responsible for greatly increased productivity.

It is equally clear that the husbandry associated with traditional agriculture has changed significantly as a result of industrialization. One of my colleagues, a cow-calf cattle specialist, says that the worst thing that ever happened to his department is betokened by the name change from Animal Husbandry to Animal Science.

In addition, in the mid-twentieth century there arose large scale use of animals in research and testing for toxicity.

References and Notes

This too was an unprecedented large-scale use of animals, lacking the fairness of husbandry agriculture. A moment's reflection on the development of large-scale animal research and high-technology agriculture elucidates why these innovations have led to the demand for a new ethic for animals in society. In a nutshell, these new developments represent a radically different playing field of animal use from the one that characterized most of human history; in the modern world of agriculture and animal research, the traditional anti-cruelty ethic grows increasingly less applicable.

A thought experiment makes this clear. Imagine a pie chart that represents all the suffering that animals experience at human hands today. What percentage of that suffering is a result of intentional cruelty of the sort condemned by the anticruelty ethic and laws? When I ask my audiences this question—whether scientists, agriculturalists, animal advocates, or members of the general public—I always get the same response: Few people have ever witnessed overt, intentional cruelty, which is thankfully rare.

On the other hand, people realize that biomedical and other scientific research, toxicological safety testing, uses of animals in teaching, pharmaceutical product extraction from animals, and so on all produce far more suffering than does overt cruelty. This suffering comes from creating disease, burns, trauma, fractures, and the like in animals in order to study them; producing pain, fear, learned helplessness, aggression, and other states for research; poisoning animals to study toxicity; and performing surgery on animals to develop new operative procedures. In addition, suffering is engendered by the housing of research animals.

Indeed, a prominent member of the biomedical research community has argued that the discomfort and suffering that animals used in research experience by virtue of being housed under conditions that are convenient for us, but inimical to their biological natures—for example, keeping rodents, which are nocturnal, burrowing creatures, in polycarbonate crates under artificial, full-time light—far exceed the suffering produced by invasive research protocols [ 27 ]. Now it is clear that farmers and researchers are not intentionally cruel—they are motivated by plausible and decent intentions: Nonetheless, they may inflict great amounts of suffering on the animals they use.

How to Do Animal Rights - about

Furthermore, the traditional ethic of anti-cruelty and the laws expressing it had no vocabulary for labeling such suffering, since researchers were not maliciously intending to hurt the animals. Indeed, this is eloquently marked by the fact that the cruelty laws exempt animal use in science and standard agricultural practices from their purview. Therefore, a new set of concepts beyond cruelty and kindness was needed to discuss the issues associated with burgeoning research animal use and industrial agriculture. Society eventually became aware that new kinds of suffering were engendered by modern agriculture.

Once again, producers could not be categorized as cruel, yet they were responsible for new types of animal suffering on at least four fronts:. These sources of suffering, like the ones in research, are again not captured by the vocabulary of cruelty, nor are they proscribed or even acknowledged by the laws based on the anti-cruelty ethic.

Furthermore, they typically do not arise under traditional agriculture and its ethic of husbandry. A few years ago, I experienced some sharply contracting incidents which dramatically highlight the moral difference between intensive and extensive agriculture. That particular year, Colorado cattle ranchers, paradigmatic exemplars of husbandry, were afflicted by a significant amount of scours. Over two months, I talked to a half dozen rancher friends of mine. Every single one had experienced trouble with scours, and every one had spent more on treating the disease than was economically justified by the calves' monetary value.

It is, of course, the same ethical outlook that leads ranch wives to sit up all night with sick marginal calves, sometimes for days in a row. Now in contrast to these uplifting moral attitudes, consider the following: One of my animal scientist colleagues related to me that his son-in-law was an employee in a large, total confinement swine operation.

As a young man he had raised and shown pigs, keeping them semi-extensively. One day he detected a disease among the feeder pigs in the confinement facility where he works, which necessitated killing them with a blow to the head, since this operation did not treat individual animals, their profit margin being allegedly too low. Out of his long established husbandry ethic, he came in on his own time with his own medicine to treat the animals. Management's response was to fire him on the spot for violating company policy!

He kept his job and escaped with a reprimand only when he was able to prove that he had expended his own—not the company's—resources. Eventually, he left agriculture altogether. The above-detailed contrasting incidents, better than anything else I know, eloquently illustrate the large gap between the ethics of husbandry and industry. Many confinement operations are run by accountants, not by animal science or animal husbandry people. Given that the old anti-cruelty ethic did not apply to animal research or confinement agriculture, society needed new ethical concepts to express its concern about these new uses.

But ethical concepts do not arise ex nihilo. Plato taught us a very valuable lesson about effecting ethical change. If one wishes to change another person's—or society's—ethical beliefs, it is much better to remind than to teach or, in my martial arts metaphor, to use judo rather than sumo. In other words, if you and I disagree ethically on some matter, it is far better for me to show you that what I am trying to convince you of is already implicit—albeit unnoticed—in what you already believe.

Similarly, we cannot force others to believe as we do sumo ; we can, however, show them that their own assumptions, if thought through, lead to a conclusion different from what they currently entertain judo. These points are well-exemplified in 20th century U. Prohibition was sumo , not judo —an attempt to forcefully impose a new ethic about drinking on the majority by the minority. As such, it was doomed to fail, and in fact people drank more during Prohibition. Contrast this with Lyndon Johnson's civil rights legislation.

As himself a Southerner, Johnson realized that even Southerners would acquiesce to the following two propositions:. So society was faced with the need for new moral categories and laws that reflect those categories in order to deal with animal use in science and agriculture and to limit the animal suffering with which it is increasingly concerned. On their view, the extent of our duties to wild animals is to leave them alone—nothing more and nothing less.

Perhaps one reason that proponents of animal rights adopt this view is that the implications of rights for wild animals are often employed as a reductio ad absurdum against animal rights in general. On this view, the implication that animals have the rights to be protected from hunger, disease, and predation as humans do shows the absurdity of the whole enterprise of animal rights. In this context, it is unsurprising that animal rights theorists have sought to lighten the burden of their already contentious arguments by distancing their theories from such obligations.

This paper, on the other hand, embraces the conclusion that wild animals are entitled to such extensive positive rights, and argues that a non-speciesist legal system demands the recognition and fulfillment of such rights under the law. The paper is structured as follows: Additionally, on this view, only legal persons are capable of possessing legal rights.

Worse still, there are whole schools of jurisprudence centered on the idea that this language is positively harmful or inhibiting to marginalized groups Project, n. In response to such concerns, it should first be noted that this paper largely rests on the assumption that rights are important or useful for humans, which if true, strongly suggests that they are important for nonhumans as well.

Attempts to overhaul or abandon the entire institution of legal rights, which may plausibly be the best long-term strategy for marginalized groups as a whole, seem overly ambitious for the animal rights movement to take on alone, since the movement is particularly under-resourced and should likely be focusing maximal resources on directly fighting for animals.

Second, while recognizing that the critique of rights raises complex empirical questions with non-obvious answers, this paper adopts the dominant view among critical race theorists and feminist legal theorists: The historic importance is best described by Patricia Williams: Today, nonhuman animals are viewed as legal things in virtually all legal jurisdictions. They are treated as property. SeaWorld, for example, has the right to own their orcas, hold them captive, and force them to perform for profit.

Since animals have no rights, and no personhood, it is exceedingly difficult to advance their interests in a court of law. Without the right to sue i. Cases are won or lost based on irrelevant facts like how many times the human plaintiff went to visit the tortured animal, how much they cared about the tortured animal, and whether they intend to return to see the tortured animal.

Before turning to the legal arguments in favor of nonhuman personhood, it is necessary to elucidate the concept of speciesism, why we must reject it, and how rejecting speciesism should impact the treatment of animals. The fallacy of speciesism occurs when we take identical interests and treat them differently solely based on species-membership. For example, humans benefit a lot from being able to drive cars, but chimpanzees do not.

Thus, a legal regime that protects the right to drive for humans, but recognizes no such right for chimpanzees is not speciesist at all. Humans have different interests than chimpanzees in this respect and we should treat them differently. But when it comes to legal personhood and basic legal rights to life and freedom, there are no relevant differences to justify excluding chimpanzees, or any other sentient individuals. Therefore, if we take our opposition to arbitrary discrimination seriously and reject speciesism, then we should not deny this same respect to nonhuman animals.

They seek to identify the foundational sufficient conditions for legal personhood and argue that the individual s in question possesses those sufficient characteristic s. Wise illustrates the absurdity by asking us how the law would respond if a band of Neanderthals descended from a hidden mountain village tomorrow. Clearly, if they could themselves ask for personhood in our own language, as science suggests they could Hogenboom, , then we would and should grant it to them.

Thus, it appears that humanness is, at best 4 There are other arguments that show that humanness should not even be considered a sufficient condition for legal personhood. For example, there is little reason to think that a human born without a brain has interests that ought to be considered by society, any more than other non-sentient objects. That begs the question: Steven Wise and Gary Francione have offered two of the most popular alternative foundations, both of which expand the current realm of legal persons to include at least some nonhuman animals.

Wise identifies autonomy 5 Wise argues that autonomy is a complex concept that can be demonstrated by a mosaic of the following characteristics: His view of common law precedent suggests that our legal system, at its core and the writ of habeas corpus in particular is designed to protect the interests of autonomous and self-determining beings.

Francione, on the other hand, takes a much more radical view, and identifies sentience Francione, n. For Francione, the ability to engage in metacognition or use symbolic language has no bearing on whether someone deserves to be part of our legal and moral community, and to have their interests count for their own sake. As stated previously, a non-arbitrary moral or legal system should recognize that all individuals who can feel or experience the world should have their interests respected and accounted for, for their own sakes.

The argument from equality takes a comparative, rather than a foundational approach to arguing for nonhuman personhood. The argument starts with the legal principle of equality: Therefore, a being is entitled to legal personhood if they are the same in all morally relevant ways as other beings who already have legal personhood. Since even severely cognitively impaired human beings have legal personhood, the argument goes, so should a vast number of nonhuman animals that have equal or superior cognitive abilities. Thus far, I have attempted to make the case for nonhuman legal personhood, but even if we are convinced that they deserve it, we are still left with the difficult task of identifying what that entails.

The dominant view among animal rights theorists is that the legal obligations of human society to wild animals ought to be: This means that the goals of legal personhood for wild animals are 1 to prohibit their enslavement, torture, and slaughter; and 2 to relocate captive animals, from zoos, aquariums, laboratories, etc. Aside from that, under the prevailing views, it is likely that the only appropriate positive duties to wild animals are 1 to restore habitats destroyed by humans, and 2 to create institutions park rangers, environmental regulations, etc.

Donaldson and Kymlicka summarize this dominant view of the animal rights movement in Zoopolis. If we assume that human beings are entitled to this wide range of positive legal rights then advocating a laissez-faire approach for all wild animals is presumptively speciesist and a prima facie violation of the legal principle of equality outlined above. Nonhuman animals have the same interests in life, food, water, shelter, and health that humans do, and the legal system should recognize that by affording them expansive positive legal rights.

Aside from the particularly thorny problem of predation, there are innumerable other conflicts posed by scarce resources and population dynamics.

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Conflicts of rights are not unique to wild animals; they are an inevitable and wholly familiar part of our human-centric legal regime, which is replete with various legal doctrines and policy tools that directly address such conflicts. Tort law and regulatory regimes are both designed to address the inevitable fact that our rights constantly and necessarily conflict with each other. They simply must be balanced against each other in a way that maximizes social benefit, and we should strive to create a world where these rights are fulfilled to the greatest degree possible. Consider all the cases of deliberate species introductions that have resulted in serious ecological impacts, or the many allegedly scientific management techniques that have led to disaster…You can save a deer by scaring off a pack of wolves, that seems like a clear benefit, but what if the wolves starve?

Or, what if they kill a younger, healthier deer over the next hill? Or, what if the deer that you have just rescued from a terrifying but quick death, will now slowly starve through a long, food-scarce winter, or suffer the effects of a prolonged wasting disease? Donaldson and Kymlicka, and the other animal rights theorists, are certainly right to be concerned. But this is an important point: This suggests that many staunch opponents of intervention in the wild are just as guilty of overconfidence about what is best for the aggregate well being of individuals in an ecosystem as the proponents of intervention they condemn.

A shrew will paralyze his prey with venom so he can eat the helpless animal alive, bit by bit, for days.

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