Rabbit Advocacy Animal Matters
Lubinski Animal Legal and Historical Center Publish Date:
Whether at home, on the farm, or at the dinner table, animals play an important role in everyday human life. They serve as companions, a source of livelihood, entertainment, inspiration, and of course food and clothing to people all across the world. Yet animals can and do exist independent from people and, as living beings, they arguably have interests separate and apart from their utility to humanity. As such, society is increasingly faced with legal, economic, and ethical dilemmas about the proper place for animals and the extent to which their interests should be respected, even when those interests conflict with what is best for humans. Recognition of these issues has given rise to a new social movement, one that seeks to attain increased legal protections, and even the recognition of actual “rights”, for nonhuman animals. Not surprisingly, this push has met with a considerable amount of criticism and ridicule from those who believe that the cost of animal rights specifically, and increased protections more generally, is a corresponding reduction in human freedom.
This Article provides a sweeping overview of the issues at play in the debate over increased legal and social protections for animals. It begins with a discussion of the historical and philosophical roots of animal rights before proceeding to an overview of the current state of the law as it relates to animals. The Article then explores the various social forces both promoting and discouraging increased legal protections for animals and the justifications for each position. It concludes with a discussion of the future of animal rights, specifically the types of reforms sought by animal advocates.
In reading the pages that follow, try to keep in mind the various “characters” that are involved. For example, when considering the notion of pet ownership, keep in mind not only your own dog or cat, but also the unadoptable stray to be euthanized at the local animal shelter. If contemplating the farming industry’s effects on cows, chickens, and pigs, also consider what effect reforms to the system would have on the average farmer or agricultural worker whose livelihood depends on the current system. When considering the chimpanzee subjected to medical experimentation, keep in mind the diabetic whose length and quality of life has been extended thanks to that kind of research. Finally, keep in mind the various interest groups involved in the “debate”— the animal activists, the industry opponents, farmers, consumers, and even the average family sitting around the dinner table. Each provides an interesting and compelling perspective.
I.Historical Roots of Animal Protection
Social movements are like novels – each comes with a beginning, followed by a succession of chapters that unfold the story until, ultimately, one reaches the conclusion. The novel here is animal rights, a tale about the advancement of other species in a human-dominated world. Stepping from the shadows of other, better known causes such as the civil rights movement and blossoming from the awareness occasioned by the environmental movement, animal rights is, for the first time, becoming a serious issue for debate. Not long ago, animal rights activists were dismissed as fringe, covered in the press only for their more outlandish activities.[i] More recently, however, animal issues have taken a more prominent place in the national media. Suddenly, stories about animals – both good and bad, heroic and tragic[ii] – take a more prominent place in the evening broadcast. Major newspapers discuss the newest animal rights books[iii] and profile those whose legal careers center on animal advocacy.[iv] But in order to truly understand the contemporary situation, one must begin with the first chapter.
A. In the Beginning. . .
Unless one is reading the Bible, most stories do not begin at the beginning. Rather, they begin just as things are about to get interesting. So it is with animal rights. While concern for animals and their well-being dates back hundreds of years[v] and animal rights literature extends back to the heart of the Civil Rights Era,[vi] to American culture the animal rights movement was born in 1975 with the publication of Peter Singer’s still-controversial Animal Liberation.[vii] In the book, Singer introduces the reader to issues that remain at the forefront of animal protectionism today – laboratory experimentation, factory farming, and vegetarianism. In each chapter, the author details the horrors endured by animals at society’s cold and at times oblivious hand. Singer accuses American society of speciesism – “a prejudice or attitude of bias in favor of the interests of members of one’s own species and against those of members of another species.”[viii] In its place, Singer argues humans should give equal consideration to the interests of animals when making any decision that affects the well-being of other species. Thus, in Singer’s world, the interests of all living beings are the same and no one, human or otherwise, should be given preferential treatment.
The irony of associating the birth of animal rights with Peter Singer is that as a utilitarian, he does not believe that “rights” truly exist at all or form the basis for moral or legal entitlements. As such, no one – be it man, beast, or shrub – possesses rights.[ix] Thus, to theorists like Singer, animals are not entitled to any fundamental, inviolable privileges or protections. But then, neither are humans. Rather, all actions should be judged based on a cost-benefit analysis. As applied by Singer, the benefits to humans that flow from the domination and perceived mistreatment of animals does not, as a practical matter, overcome the costs imposed on those other species. Animal rights advocates, as it turns out, come to the same conclusion, but based instead on the notion that there are certain rights so fundamental that they extend to other species and must be respected by human civilization.
More important than Singer or his theories, however, is the recognition that he did not actually give birth to the animal rights debate. Rather, questions about the status of animals in relation to humanity are not even a twentieth century development and instead dates all the way back to ancient Greece’s greatest thinkers. Some, like the great mathematician Pythagorus, believed animals deserved some protections and as such chose to eat a vegetarian diet. At the other end of the philosophical spectrum, Aristotle forcefully argued that humanity was superior to all other Earth life and that such responsibility carried with it no ethical obligations towards lesser creatures.[x] Later philosophers, such as Rene Descartes and John Locke also considered animals’ place in human society.[xi] Finally, although not speaking in the context of animal rights, Jeremy Benthan famously contended that the protection of any creature should depend not on its ability to reason, but its ability to suffer.[xii]
Religion and science also influenced human perception of animals.[xiii] While Christianity brought about many reforms in Roman society that improved the treatment of people towards one another, it did so in part by reinforcing the lesser status of other creatures and the lack of ethical obligations owed to them.[xiv] With a few notable exceptions,[xv] Western religions have generally taught that humans stand in a morally superior position to other animals[xvi] and have on occasion challenged science’s best evidence of humanity’s close relationship to other forms of life.[xvii] By contrast, several eastern religions such as Buddhism and Hinduism contain tenets that recognize the need to account for all life when considering the proper bounds of ethical action.[xviii] Indeed, some animals are considered sacred; take for example the cow to Hindus or the cat to ancient Egyptians.
Science has played a more complicated role in society’s treatment of animals. While vivisection – the experimentation on and dissection of animals for the advancement of scientific knowledge and human benefit – has subjected animals to untold pain and torment, the fruits of such procedures have also enabled medical breakthroughs that have lengthened and improved the quality of human life. While the continued propriety of such procedures is highly contested[xix], their historical significance on human attitudes cannot be questioned. Yet science has also helped to break down the barriers between humans and other species, most notably through Charles Darwin’s theory of evolution and subsequent research that demonstrates the genetic similarity between humans and other animals.
The historical role of animals can also be viewed chronologically. As will be discussed later[xx], through much of human history animals have served as a kind of commodity valuable to human enterprises, but devoid of any independent legal interests. As such, many, if not all, of the earliest laws relating to animals revolved around their proprietary value to their owners. Thus, for example, the owner of cattle might be able to sue another person for the damage that individual caused to one of his cows (his investment), but that same cattle owner could not be held liable for any harm he himself caused to that same creature. In the late nineteenth century, this purely economic vision of animals began to change with the publication of a book entitled Animal Rights, the formation of both the British and American Societies for the Prevention of Cruelty to Animals, and the enactment of the first anti-cruelty laws. These laws for the first time recognized that animals themselves have an interest in being free from unnecessary and cruel suffering by giving the state the power to punish anyone who inflicts such pain on a non-human creature. The instigation of World War I and the conflict and uncertainty that persisted until after World War II largely stifled further advances for animal interests during this period. In post-World War II America, however, concern for animals was reborn as organizations such as the Humane Society of the United States educated the public about animal welfare and society continued its march towards increased urbanization.
Moreover, the move from the country to the city and the transition of animals from mere means of livelihood to household pets further modified the human perception of animals. As more people developed emotional bonds to animals, they consequently began to view them, or at least certain species of animals, as deserving special protections. This development and further refinement of animals’ place in a human-centered world continues today on an ethical and legal basis.
With that historical foundation in place, the story now turns to the basic legal and social concepts fundamental to the discussion that follows.
B. Animals in Society Today
The prevalence of animals in society makes a detailed discussion of their importance unnecessary. Nonetheless, it is worth briefly summarizing some of the figures to emphasize just how important animals are to American society and the economy. According to the Census of Agriculture, in 1997 there were 98,989,244 cattle and calves used in United State agriculture, 61,206,236 hogs and pigs, 7,821,885 sheep and lambs, and over 7 billion chickens used for egg and meat production.[xxi] In that same year the total value of all cattle and poultry was nearly $100 billion.[xxii]
Agriculture is but the tip of the proverbial iceberg, however. Anyone who questions the bond between people and their pets need only look at statistics detailing the number of people who celebrate their pet’s birthdays, stay home from work when a pet is sick, or greet their pet first when coming home in the evening.[xxiii] As detailed by the American Veterinary Medical Association:
Veterinarians in private clinical practice are responsible for the health of approximately 53 million dogs, 59 million cats. Bird ownership has risen over the past 5 years from 11 million in 1991 to approximately 13 million birds. The number of pleasure horses in the U.S. is about 4.0 million. Other pets such as rabbits, ferrets, guinea pigs, hamsters, gerbils, other rodents, turtles, snakes, lizards, other reptiles and many other animals primarily kept as companion animals. Rabbits and ferrets are owned by 2.3% of households in the U.S. with a total population of 5.7 million; 4.8 million rodents are owned by 2.3% of households and 1.5 % of households own 3.5 million reptiles. The fish population is estimated at 55.6 million owned by 6.3% of households.[xxiv]
Of course, animals can also be found in the laboratory. A wide variety of species are used in research and experimentation.[xxv] In fact, over 18 million animals are used in research and experimentation in the United States.[xxvi] The controversy surrounding such experimentation is beyond the scope of this Article, however, even for a superficial discussion. For such an overview of the animals in research controversy, one that is admittedly biased, see: http://www.hsus.org/ace/11366; http://www.hsus.org/ace/11366
C. The Definition of Rights
Thus far, the term “rights” has been used fairly frequently and loosely in this Article without a definition of the word’s meaning. Similarly, society, especially American society, often lacks an understanding of the exact meaning of the term when its members use “rights” to describe various legally protected interests. While this is not the place for a comprehensive discussion of the meaning of “right,” a brief introduction is warranted so as to inform what is meant by “animal rights.”
Like so many other concepts there is no single, workable definition of “right”. Put most succinctly, but consequently also most superficially, a right is “that to which one is morally or legally entitled.”[xxvii] Then, a right can be an entitlement. One might also look for the answer in natural law, which is the source of “right” as embodied in the Declaration of Independence.[xxviii] From this perspective, a right is “the idea that human beings have by nature . . . certain rights that governments cannot legitimately violate, and that political law must respect.”[xxix] A right, then, may also be something a person is born with. One could also take a more functionalist perspective, viewing rights as those principles that protect individuals from the rest of society.[xxx] To conceptualize, rights are thus like fences, keeping the world out of certain areas of the individual’s life.[xxxi] Trying to mesh these different conceptions, rights might be less a concept than a tangible entitlement some creatures are born with. They serve to protect individuals, in some cases at all costs, from the needs, wants, and prurient interests of the rest of society. Such a definition, however, fails to make a critical distinction—that rights can be legal or philosophical.
Legal rights are those that the government, in some fashion, provides protection for. Thus, when we talk of constitutional rights, we mean those interests that cannot be taken away by a court, government agent or action. Philosophical rights are those recognized as inherent to human civilization; those that are based on notions of basic morality. Thus, these rights do not depend on the enactment of any formal law before they will be deemed to exist. Philosophical rights are those so fundamental that human society declares their existence even where it is unlikely that they will be enforced. For example, people, we might say, have the right to be free from torture, even in countries where this right is not enforced or recognized by law. Such rights, then, may not be universally applied and may even be violated regularly in some locations, but they exist nonetheless as the ethical and moral underpinnings of civilized society.
Legal rights, by contrast, are those that will be enforced by the law and provide substantive protections for the rights-holder. They are those enforceable in a court and recognized under the law. Some come from statutes, others from a constitution (state or federal), and still more from the common law made by judges. Most are express and easy to identify, at least in principle, while others remain shrouded in the penumbras of other recognized rights waiting to be discovered. Their existence, however, is dependent upon the benevolence of the lawmaking authority to recognize and enact them. Moreover, competing legal rights must be balanced against one another to determine which should win out in any given situation wherein the two conflict. Legal rights also cannot be taken away by private individuals, though the scope of that protection is perhaps often misunderstood. The simple existence of a legal right does not make it impossible for another to take that interest from another, rather the existence of that right will provide the aggrieved person with a remedy for that invasion. To this point, however, society recognizes legal rights for only one species – humans. Therefore, in seeking to expand society’s conception of rights, the nuances of one’s definition matter, at least to members of the animal advocacy community.[xxxii] These, however, might be best thought of as characterizations of philosophical rights.
Closely related to the concept of legal rights, and equally nebulous, a legal interest is “any interest that the legal proceeding has the authority to address.”[xxxiii] Legal interests may better be understood in the negative – a deprivation of a legal interest equates to a cognizable injury capable of being remedied by the law.[xxxiv] While closely related to and important to the issue, the Supreme Court has emphasized that the determination of legal interests is separate from a question of standing (or the ability to have a court hear your case).[xxxv]
II. Present State of the Law
Under the law as it now stands, animals enjoy some legal protections from mistreatment, but they remain unable to enforce those entitlements themselves. Instead, the state takes it upon itself to monitor, with varying degrees of success, human society to ensure that its members do not violate the safeguards meant to protect other species. To understand the meaning of this state of affairs, a little legal background is warranted.
A. Legal Personhood
The law is full of classifications, one of the most important of which is the distinction between persons and nonpersons. While there is no rule that prevents nonpersons from holding legal rights and protections, only legal persons have the capacity to enforce and safeguard those entitlements. In reality, personhood is nothing more than a legal fiction, a term attached to certain entities that allow them to assert their rights and privileges. To the nonlawyer, it is probably no surprise that today all people are persons. It might be more surprising to learn that this was not always the case[xxxvi] or that entities like corporations and the government are legal persons.[xxxvii] Animals, however, are not persons and thus, unlike in the wild, cannot fend for themselves in a court of law to protect their interests. Moreover, this fact also limits the benefits animals can receive.
Personhood, then, for these purposes boils down to having the ability to sue. To be able to sue, a potential litigant must have standing, as referenced earlier. Standing might be thought of as the confluence of a legal person, a legal right, and a legal interest seeking to redress a legal wrong. Because animals are not persons, they cannot sue. Moreover, the standing requirements articulated by the Supreme Court make it difficult for activists to sue on behalf of animal interests because rarely can they assert a sufficient legal injury to their legal interests. As articulated in Lujan v. Defenders of Wildlife, to have standing a plaintiff must:
1. have suffered an injury of fact, 2. caused by the defendant, 3. and that can be remedied by the judicial forum.[xxxviii]
This injury “must invade a legally protected interest which is a) concrete and particularized and b) actual or imminent, not conjectural or hypothetical.”[xxxix] Animal advocates often have trouble meeting this injury in fact test for many animals, especially those used in research because they have no personal relationship with the creature. Indeed, while courts have been willing to recognize an aesthetic injury to support a lawsuit[xl] they have at the same time refused to read into statutes private causes of action.[xli]
While it is absurd to imagine a nonhuman actually litigating a case[xlii], it is less difficult to imagine a human attorney representing an animal client. That prospect, however, raises the potential for abuse by trial lawyers seeking out lawsuits. As such, any change to the personhood status of animals would require consideration not only of what types of claims could be brought “by” the animal, but also what human(s) should be allowed to assert those rights on the animal’s behalf. Moreover, as discussed later, there remains conflict within the animal protection community itself whether such a change should be a primary goal of the movement or simply the natural result of other substantive societal reforms.[xliii]
To the law, animals are property: they are goods to be bought and sold, acquired and maintained. This principle is deeply interwoven into the law. Indeed, some of the first cases read by law students in Property class are Pierson v. Post[xliv] and Keeble v. Hickeringill[xlv]; each of which is about the acquisition, ownership, and control of wild property – namely foxes and ducks. Treating animals as property is not strictly a matter of law, however, as it is also deeply entrenched in Western religion. The Old Testament, for instance, decrees that animals are goods over which humanity has dominion.[xlvi] Philosophers, too, have considered the property status of animals. John Locke, for example, wrestled with the proprietary nature of humanity’s interactions with animals. To him, animals were something common to the world, not unlike the air we breathe.[xlvii] How could something of that nature be legally possessed by any one individual? On the other hand, animals have the potential and perhaps purpose of serving humanity. Towards that end, animals can best benefit individuals within society by giving people the ability to possess such creatures, to be able to control others’ access to certain animals.[xlviii] Thus, to the law, religion, and philosophy, animals are chattels whose destiny is rightly directed by humans. As property, they have no interests independent of those assigned by humanity. And yet, animals are not just like any other household property.[xlix]
C. Animal Cruelty
Unlike the household toaster, the law regulates how people treat their animals. Anti-cruelty laws prevent inhumane treatment to animals, subjecting violators to criminal sanction for causing unjustified harm to other creatures. Penalties range from misdemeanor fines in some locations to a recent trend towards making such conduct a felony.[l] Thus, much like criminal statutes designed to protect humans, the state has the power to penalize those who hurt animals. This sets animals apart, giving them special status within the property regime. They are entitled to certain minimum guarantees, namely that they will not be made to suffer unnecessarily.
It is important to recognize at the same time, however, that such anti-cruelty regulations do not solely have animal interests at heart. Quite apart from any benefit the animal might receive from being free from cruel treatment, such laws also help to protect human investment in property. Moreover, many who support such laws are truly concerned not with the actual harm to the animal, but with what such treatment indicates about the abuser – namely a propensity to violence that might ultimately lead to violence against humans. Given these concerns that exist independent of animal interests, it is not surprising that such laws are often vaguely written (what after all is cruel and what is unnecessary?) and are often under-enforced.[li]
D. Federal Laws
While animal cruelty statutes serve as the most important state laws “on the books” to protect animals, two federal laws seek to regulate the way that that animals are used in agriculture and science. The Federal Humane Methods of Livestock Slaughter Act regulates how animals raised for consumption are killed.[lii] Similarly, the Animal Welfare Act seeks to protect animals used for scientific and medical research by limiting the procedures that can be performed on such test subjects.[liii] While others have written extensively on these two laws, for these purposes it is most important to recognize the driving force behind these laws. For better or worse, neither law seeks to bestow absolute protections upon the subject animals, but instead seeks to strike a balance between the human interests in research and cost efficient delivery of agriculture products and the interests of animals not to suffer “needlessly.”
Of course, no discussion of federal law would be complete without a brief introduction to the most commonly known animal protection law—the Endangered Species Act.[liv] At base, the law operates by providing criteria for listing species threatened by extinction as “endangered” and then regulating and limiting human activities in areas where those animals are known to exist. The result, in addition to preserving species who might otherwise be lost to the world, is to increase the cost of development and in some cases prevent development altogether. Indeed, as originally drafted, the law was absolute in its protections, providing no exceptions from conservation of listed species, and as a result worked to temporarily stop the construction of the Tellico Dam in Tennessee because the area was the last known habitat of the Snail Darter.[lv] As a result, the law was amended to provide for exceptions to strict conservation.
E. Damages to Animals
Unlike harm caused to humans there is rarely a private cause of action to redress injuries inflicted upon animals. Surely, an animal owner can recover for the lost value of the animal, but in the case of a dog or cat such sums are usually insufficient to justify filing suit. No court under the current legal regime would award an animal damages for injury to its being. Moreover, most courts deny animal owners the ability to sue for the damages they incur to their person, in the form of emotional damage, when their animals are injured or killed.[lvi]
Several jurisdictions in recent years have considered changes to this rule. In 2003, several Colorado state legislators sponsored a bill that would have allowed pet owners to receive up to $100,000 in emotional damages for injuries inflicted upon their pets.[lvii] The sponsors withdrew the bill, however, before any votes were taken after popular skepticism led several other legislators to ridicule the bill. Tennessee in 2000 went substantially further and actually enacted legislation allowing animal owners to recover emotional damages for injuries inflicted upon their pets.[lviii]
For a more thorough discussion of this issue, please see http://animallaw.info/topics/spuspetdamages.htm.
III. Animals in Human Society
Thus far, the “story” of animal rights has been confined to the background historical and legal concepts necessary to understand the material that follows. No one would dispute that animals play an important, perhaps even vital, role in human society. Nonhumans provide the backbone to economies, to the advancement of science, and even to some people’s emotional and physical well being. In considering and evaluating the materials to follow, add the following to the more general list of characters already introduced.
Consider first animals that exhibit human characteristics, or how people attribute animal characteristics to some animals. For example, Alex is a parrot in Massachusetts that can speak. Unlike the pet store parrot, however, Alex does more than mimic sounds. He recognizes and can identify colors. He can count. Researchers at MIT are debating whether he can communicate. It is there that he lives in his cage, along with several other birds, subject to the close scrutiny and tests of scientists trying to ascertain the limits of his linguistic capabilities.[lix]
Renowned scholar Martha Nussbaum begins her critique of Professor Wise’s previous book with Flo’s story:
Flo, a female chimpanzee, died of old age by the side of a stream. Flint, her son, stayed by her corpse, grabbing one of her arms and trying to pull her up by the hand. He slept near her body all night, and in the morning he showed signs of depression. In the days following, no matter where he wandered off, he always returned to his mother's body, trying to remove the maggots from it. Eventually, attacked by the maggots himself, he stopped coming back, but he stayed fifty yards away and would not move. In ten days he lost about a third of his body weight. Finally, after his mother's corpse had been removed for burial, Flint sat down on a rock near where she had lain down, and died. The post mortem failed to show the cause of death. Primatologist Jane Goodall concludes that the major cause of death had to be grief: "His whole world had revolved around Flo, and with her gone life was hollow and meaningless.[lx]
Next, consider the new ways in which society finds to utilize animals for their benefit. In South Dakota there is a cow named Yoon. She looks and probably acts line any other bovine, but she is not. Unlike other livestock, her “purpose” is not to provide meat or milk to society. Yoon, like an ever-increasing number of animals, was genetically engineered by human scientists. Unlike some clones, designed for the novelty of science or for food production, Yoon and her siblings were created to save lives. Each produce human antibodies, antibodies the cows’ creators hope will someday do everything from treat ear infections to guard against bio-terror weapons like anthrax and smallpox.[lxi]
Such miracles might become a reality by infecting the animals with various bacteria and viruses. The antibodies’ response could be used to treat and prevent illness in the same way we now use gamma globulin to combat hepatitis. Other animals are similarly being used. Research is underway, for instance into producing pigs whose hearts could be used for human transplants and who might better produce human insulin for diabetics.
Finally, consider a dog. Luke was a yellow Labrador Retriever and a family pet. Over the course of his ten year life, he became a dear member of the family who was much loved. As often happens with our human loved ones as they age, Luke’s health began failing as he got older. His veterinarian prescribed special diet food for him to go along with his multiple, daily medications. He also had to have several surgeries and costly diagnostic tests from time to time. Unlike a human family member, Luke’s family always had an alternative to treating his ailments—euthanasia. Thus, when Luke blew out his knee like a football player, his family was given three choices: surgery, leaving it be and controlling pain with medication, and putting him down. Ultimately, when Luke came down with something he could not recover from, his family did not wait for the end to come on its own and instead “put him to sleep” to cut short his suffering. All along the way, these life choices were not, and perhaps could not be, made by Luke.
A. Differing Perspectives on Animals
Not everyone will react to the above biographies above in the same way. Thus, for instance, some might consider the use of Yoon a travesty, while others a necessary cost of promoting human health, and still others yet another creative way to make an otherwise dumb animal useful. For purposes of simplicity, this article assumes only two general groups of people—those in favor of increasing legal protections afforded to all animals and those opposed to all such attempts. The discussion, then, is one of pure theory that intentionally omits the considerations of the great many people who find themselves in the middle of this ideological spectrum. This drastic approach is taken not with the illusion that it represents reality, but rather with the hope that by contrasting these radically divergent viewpoints the reader can begin to place him/herself along that spectrum.
1. Rights versus Welfare
Even within the animal protection movement there is disagreement about the goals that should be sought on behalf of other species. Roughly, there are three competing philosophies: traditional welfare theory, animal rights, and “new welfarism.” While each seeks to advance the protections afforded animals under the law, they differ in approach and the ends sought to be attained.
Briefly, one might understand welfare and rights to lie at opposite ends of the protectionist spectrum. Animal welfare advocates support the types of reforms long sought on behalf of animals – increased penalties for unjustifiable harsh treatment, in other words. Welfarists accept the legal status of other species as property, even condoning such a classification. Moreover, they acknowledge that animals always will be, and perhaps to some extent should be, used as resources for humanity. The limit, however, is that animals should not suffer unnecessarily at the hands of people.[lxii] In short, then, welfare advocates seek a benevolent dominion over animals that expressly reaffirms humanity’s superiority to other species.
Many of the contemporary gains made on behalf of animals are welfare-based in nature. For instance, at the federal level, statutes such as the Animal Welfare Act[lxiii] and the Humane Slaughter Method Act[lxiv] seek to ensure that animals used in industry are treated appropriately. State anti-cruelty laws aim to proscribe the mistreatment of animals by private citizens, in other words setting the bounds for the treatment of dogs, cats, birds, and the like.[lxv]
Take note that the goal is to regulate unnecessary pain and suffering, not all suffering. This means that it is all right to eat animals, to use them for some experimentation, to domesticate them, and in some circumstances to kill them. Moreover, the effectiveness of welfarism in protecting animals depends on how broadly or narrowly a society chooses to define “unnecessary” in various circumstances.[lxvi] Thus, welfarists seek no fundamental change in the legal order, only increased protections within the current regime.
On the other end of the protectionist spectrum lie animal rights advocates. Rights advocates seek to first change the fundamental legal status of animals away from mere property towards something closer to personhood. Such a change would open the door to more expansive reforms down the line. At base, rights advocates believe that all animals, human and otherwise, possess some inalienable rights that deserve recognition and protection. To the law, these might be characterized as fundamental rights that must never be abridged except in the most dire of circumstances. The number and scope of such rights do not come in one size, but rather are unique based on the intellect and capabilities of each species.[lxvii] Therefore, rights advocates do not seek to equate human rights with those of animals, but rather recognition that some animal rights do exist.[lxviii]
Thus, rights advocates do not accept the property status of animals nor the wisdom of subjecting them to human domination. Animal experimentation in laboratories, even if helpful to humans, is unjustified. Factory farming, and perhaps the meat industry itself, is immoral. Indeed, one must be careful not to eat produce sprayed with pesticides that cost insects their lives.[lxix] Even the concept of pet ownership is suspect under the rights framework.[lxx] Acceptance of this rights position requires a rejection of American law as it currently stands.[lxxi]
Such seemingly radical reforms make rights advances hard to come by. As such, those dissatisfied by both extremes may look for an alternative approach. Lying between the rights and welfare points on the spectrum exists what Professor Francione calls “new welfarism.”[lxxii] At its most fundamental level, new welfarism represents a sort of compromise between rights and welfare whereby animal advocates accept traditional welfare gains in the hope that they will eventually amount to a recognition of animal rights. The new welfarist is identified by several characteristics. First, she rejects the notion that animals are merely tools for humanity.[lxxiii] Second, is a rejection of the traditional animal rights framework as too radical to effect real change.[lxxiv] Third, the strategies they instead employ tend to mimic those of traditional welfare-based groups.[lxxv] To rights activists, the effect of such an approach is to substantially reinforce the human dominance over animals they claim to reject.[lxxvi] In so doing, they perceive no “moral or logical inconsistency in promoting measures that explicitly endorse or reinforce [a] … view of animals [as instrumentalities of humanity] and at the same time articulating a long-term philosophy of animal rights.”[lxxvii] In a more sympathetic light, new welfarists might be thought of as realistic rights advocates – taking what they can get now and hoping for more expansive reforms in the future.
2. The Anti-Animal Rights Position
Animal rights opponents object to both the concept of rights for nonhumans and its practical implications. On a philosophical level, animal rights would devalue humans by putting them on par with other, perhaps all other, life on the planet. Even if one were to accept that the differences between people and animals are subtle, it is the accumulation of these differences that makes civilization possible.[lxxviii] To equate humans to animals, to really believe we are the same, one must dismiss “innate human characteristics, the ability to express reason, to recognize moral principles, to make subtle distinctions, and to intellectualize.”[lxxix] In other words, one must dismiss a lot about humans to equate them with other species. Moreover, such objections do not encompass the many religious objections to animal rights. Many religions teach that it is the existence of a soul that makes human life so sacred and only humans possess souls. Finally, one should not overlook the biblical grant of dominion over animals given to man.
In a similar but distinct vein, rights are something intrinsically unique to humans. Rights are simply a term we attach to the special significance given to human life. The existence of rights, and the extension thereof, is a human debate; one in which, by definition, animals cannot have a voice.[lxxx] This principle has broader implications. Peter Singer is famous for his accusation that humanity is “speciesist,” or heavily favors its own kind. Others mean the same thing when they call humans homocentric or narcissistic.[lxxxi] They complain people always put people first. But is that so wrong? Why shouldn’t a species care most for its own, even if that means exploiting another? Put another way, this is how the animal kingdom works. A mother bear does not care what effect her actions have on the rest of the animals in the forest, only on her cubs. The coyote, when he devours livestock, does not consider the impact such a taking will have on the rancher’s livelihood, must less the well-being of the cattle.
Moreover, the rights opponents contend, society always has and still does reject any notion of rights for animals. As Steven Wise, one of the leading animal rights advocates in the country, notes, people have long treated animals as “things.”[lxxxii] Animals are things, like trees and oil, which we use for our own benefit. This is a reality recognized by the courts. Take for example the United States Supreme Court’s opinion in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah. In that case, a Florida city passed an ordinance aimed at prohibiting the animal sacrifices performed by members of the Santeria religion. The law was challenged in court on First Amendment free exercise of religion grounds. As part of its defense, the city claimed the law was intended to safeguard animals from unnecessary suffering. The Court rejected this argument almost out of hand, making numerous references to the cruelty humanity inflicts on animals all the time, conduct not regulated by the statute.[lxxxiii]
In speaking about the anti-animal rights position, it is important to note that many such people do not draw the same distinction between rights and welfare as done by animal advocates. More importantly, few would classify themselves as against true animal welfare—some sort of philosophical position that seeks to inflict truly unnecessary harm on animals. Quite to the contrary, most such people believe instead that there are already adequate animal protection laws on the books and that any additional laws can only be intended by the animal protection movement as a prelude to future more controversial reforms.
B. Forces Inhibiting Change
Apart from competing philosophies, there are external forces at work that discourage greater gains for animal protection.
1. Economics (domestic and international)
Money as they say, talks. Animals are, for lack of a better description, big business in America and elsewhere. A look around the average house demonstrates the important role that animals play in the economy. Household use of animal products extends far beyond leather shoes and the food in the refrigerator, however. As Professor Wise points out:
the blood of a slaughtered cow is used to manufacture plywood adhesives, fertilizer, fire extinguisher foam, and dyes. Her fat helps make plastic, tires, crayons, cosmetics, lubricants, soaps, detergents, cough syrup, contraceptive jellies and creams, ink, shaving cream, fabric softeners, synthetic rubber, jet engine lubricants, textiles, corrosion inhibitors, and metal-machining lubricants. Her collagen is found in pie crusts, yogurts, matches, bank notes, paper, and cardboard glue; her intestines are used in strings for musical instruments and racquets; her bones in charcoal ash for refining sugar, in ceramics, and cleaning and polishing compounds.[lxxxiv]
The family pet is likely a product of the dog breeding industry. Factory farming techniques helped put meat, cheese, and eggs on the table at a reasonable price. Dog racing, horse racing, and hunting provide both entertainment and income to millions across the country. The list is nearly infinite, but the point is that the current status and treatment of animals is deeply interwoven into the American capitalist system. It must therefore be considered what effect a change to the legal status of animals would have on the national labor market and cost of goods. Any change to the law that significantly alters the relationship between humanity and this lucrative property line would have deep repercussions within the economy.
International economics also discourage significant changes to the legal status of animals. With increasing globalization and the emergence of a worldwide marketplace has also come the proverbial “race to the bottom” in regulatory practices. Thus, as a result of the comprehensive American laws meant to provide protection to the average employee, companies have moved many jobs to other countries where there is less workplace regulation and the cost of labor is far less expensive.[lxxxv] Similarly, it seems likely that if the United States were to create more substantive protections for animals, thereby increasing the cost of delivering animal products to consumers, corporate farms and ranches would simply move their facilities to another country where animals do not enjoy similar protections. In so doing, they would be able to provide a comparable product at prices far less than could domestic producers who would in turn be forced out of business. The result, though “feel good” for animal advocates, might net only negligible gains for animal welfare. In a world, then, where anything that has to be there overnight can be, animal advocates must propose not only legislation in their home, but also seek international change as well.
2. Culture and Tradition
Perhaps more important than money, human culture encourages a continuance of society’s current treatment of animals. The use, and some might say abuse, of animals is well established. While one might feel sympathy for the needs of his or her own dog or perhaps even the stray on the corner, that same concern probably does not extend to the turkey at Thanksgiving. Indeed, the recognition of animal rights might well mean the end of many cherished items and traditions, such as leather seats, shoes, and baseballs.
Similarly, there are hobbies and sports dependent on the treatment of animals as something less than legal individuals. Animal rights opponents quite rightly point out that both hunting and fishing might well come to an end if animal protections are allowed to advance too far, not to mention other sports such as dog and horse racing. Moreover, people have become used to viewing animals as things, as exhibits at the zoo or entertainers in the circus ring. Indeed, these human perceptions and customs are so self-evident they need no further elaboration.
Taken as a whole, then, one sees that animal advocates, whether noble activists or misguided fanatics, face an uphill battle in winning over society and the legal system.
IV. Looking to the Future
To this point, we have examined the historical and legal background of the “animal rights” debate, met the characters and players involved, and considered the various conflicting factors that affect the potential for and desirability of legal change. What remains, then, is a discussion about the actual goals sough by animal rights advocates.
A. Rights goals
There are many initial, intermediate, and ultimate goals that the average animal rights advocate would like to achieve. To some, the ultimate goal is simply more equitable treatment for animals, with no real more tangible meaning than that conceptual hope. Others have real tangible goals that include an end to animal experimentation, the consumption of animals by people, and perhaps an end to the domestication of different species. Still others who consider themselves animal advocates are really only concerned about the interests of some subset of animals—animals like their dog for instance. Thus, there is no end to the types of gains one might seek. For a survey of such possibilities, there are countless excellent books on the subject. For purposes of introduction, however, it seems far wiser to stick with a single, fundamental and yet highly controversial goal of the animal protection movement—legal personhood.
Rights advocates, as discussed above, recognize that to achieve any novel gains for animals requires a change in their legal classification – away from property and towards legal personhood. Personhood would give animals standing in court to assert their rights, both those that may exist currently under the laws in the form of anti-cruelty statutes and those that may evolve under the common law.[lxxxvi]
One way to abrogate the property status of animals, thereby conferring some aspect of personhood, without totally dismantling the current system of animal ownership would be to divide that ownership into its legal and equitable components. Such a division is common in title to real property and the ownership interests of trusts. At its most fundamental level, the legal interest holder is the person with legal title to the property – the record owner with the ability and responsibility to control the property. Common examples of legal owners are the grantor of a life estate with a reversion or the trustee of a trust. Conversely, the equitable title holder – the holder of the life estate or the beneficiary of the trust – is the person deriving benefit from the property without having control over the property’s disposition.
Such a division allows the ownership interest in property to be held by multiple people in different capacities. In the context of animal rights, recognizing animals’ equitable interest in themselves – equitable self-ownership – could transform them from pure legal property into pseudo-persons capable of enjoying greater legal protections and more importantly holding legal interests that they could enforce in a court of law. Humans, on the other hand, would then retain legal title to the animals, leaving that person both the ability to use that animal and the responsibility for its care.
The creation of this new legal classification of animals could resolve the standing obstacles to the enforcement of current laws – giving Yoon, Alex, or even Luke the ability to sue for their mistreatment – as well as pave the way for more innovative and progressive protectionist laws. At the same time, it is a far less radical step than completely dismantling the current legal status of other species and works as a balancing tool between the competing interests of man and beast.[lxxxvii]
Such a subtle approach is, in a very real way, a form of new welfarism. More importantly, one could view recent changes to the law as a sign of such subtle change. Several years ago, Boulder, Colorado—locally known as ten square miles surrounded by reality—enacted a local ordinance to change the legal title of pet “owner” to pet “guardian” to reflect the special status of animals as property.[lxxxviii] Though Boulder faced significant ridicule and scrutiny, its lead has subsequently been followed by several other municipalities.[lxxxix] While such changes have not resulted in a substantive change in the legal classification or treatment of animals, it would be overly simplistic to call such reforms nothing more than semantics. Similarly, trust law increasingly recognizes the interests of pets whose owners wish for them to be cared for after death. The uniform probate code as well as the probate codes of several states expressly recognize “pet trusts”, under which Spike or Fido or Luke can be the beneficiary of a trust. More importantly, appointed third persons, humans naturally, can enforce the terms of the trust to ensure that the trustee actually administers the trust in the best interests of the animal.[xc] The Uniform Trust Code, recently drafted and being considered in many states, goes a step further and grants pet beneficiaries the classification of legal person for the limited purpose of serving as a beneficiary under a trust.[xci]
B. International perspectives
Because of the origin of the author of this article, the preceding pages have concentrated on American society and American law. It would be a mistake, however, to consider animal protection a strictly American dilemma. Indeed, other countries have been more willing to embrace some notion of animal rights. New Zealand, for example, enacted the Great Ape Project several years ago. That law worked a fundamental shift in the country’s legal system by extending basic rights to humanity’s closest evolutionary relatives. Now, under New Zealand law, these animals now possess three basic guarantees: the right not to be deprived of life, not to suffer cruel treatment, and not to be subjected to medical or scientific experimentation. Notice that each right is a negative one, a right to be free from something, rather than any positive rights. The world’s reaction to the law was decidedly mixed, but to date no other countries have enacted similar laws. Moreover, New Zealand has not expanded these animal rights any further.
Germany, by contrast, recently wrote a very broad promise of animal rights into its constitution, though the real significance of the amendment is unclear. After years of debate, both chambers of the German parliament agreed to include mention of animal rights in the country’s governing instrument. There is no specific language explaining what this means. However, shortly after its passage in the lower house of the German parliament, a BBC article speculated that “The addendum is expected to lead to new legislation limiting the testing on animals of products like cosmetics and mild pain relievers.”[xcii] Perhaps ironically, after years of debate, the measure passed after a court decision strikingly similar to the City of Hialeah case decided by the United States Supreme Court.[xciii] speculated that “Thus, what effect such language will have on the daily lives of German animals remains to be seen. How will fundamental protections for animals mesh in a country known for its meat products? Similarly, Switzerland several years ago declared animals were no longer property. Despite this assertion, the practical status of animals within the country remains substantially the same.
The European Union, too, has gotten into the act. Many European countries have signed onto the “pet protection treaty”, the basic tenets of which are that:
1) Nobody shall cause a pet animal unnecessary pain, suffering or distress; and 2) Nobody shall abandon a pet animal.[xciv]
While mostly aspirational in seeking to elevate the welfare of animals, it does provide some substantive regulations, such as prohibiting the sale of an animal to anyone under sixteen years of age.[xcv] Similarly, the Convention for the Protection of Animals during International Transport and the more recent Directive on the Protection of Animals during Transport seek to establish minimum safeguards for animals transported in Europe.[xcvi] Indeed, across Europe animal rights is a burgeoning topic for social debate. In Slovakia, “Sloboda Zvierat” was formed in 1992.[xcvii] In Poland, animal advocates have “Fundacji Viva!”, a Polish version of the VivaUSA!.[xcviii]
Asia, too, has sought to increase protections for animals. India provides an example of a country with a longstanding tension like that potentially building in Germany. India is the birthplace of some of the most animal-friendly religions in the world. Indeed, Hinduism, Jainism, and Buddhism all contain important threads teaching respect and protection for all animal life. To these religions, humanity is just a link in a much greater chain of existence. Ghandi, known for his work and compassion for humans, was also a quiet but dedicated animal advocate. Indeed, these philosophies have, in part, carried through into Indian law with several important protectionist laws. The Indian constitution itself specifically protects animal life. Yet, even here, these protections fall short of conferring real rights upon animals. More importantly, the Indian ideal falls well sort of its goal and may in fact be in retreat. Home to significant animal exploitation and exportation, including the mistreatment of cows – sacred creatures to the Hindu religion – the country is also being inundated by Western culture and its attendant treatment of animals. Even some Buddhists, known for their vegetarianism, have repudiated their tradition for a meatier diet. Moreover, just recently the highest court in Israel banned the production of fois gras (goose liver) by forced feeding as being violative of the country’s laws against cruelty to animals.[xcix]
Of course not all foreign countries are so generous to animals. In many countries both man and beast are treated far worse than in the United States. The point to be made, however, is that the animal protection question is a global one not localized to any state, region, or country. More importantly, as alluded to in the discussion of international economics, changes made by one country to its animal laws will likely affect the well-being of animals in other countries.[c]
C. Public Awareness
One might consider an important objective of the animal rights movement already achieved—increased public awareness. Animal rights organizations have helped prompt reforms at several fast food companies and recently a national grocery store announced plans for new minimum humane treatment standards for all of the meat it sells.[ci] In addition, major corporations are taking positions on animal issues[cii] and major educational institutions are working towards developing alternatives to animal testing.[ciii]
Just as introductions rarely represent true beginnings, neither do conclusions represent the end of the story. Rather than providing closure, conclusions are often, looked at in another way, simply introductions to another story. Such is the case here. While animal rights as theory already has a significant history, animal rights as a vehicle for legal change is just taking root. In countries around the world changes in the legal status of other animals is already underway and several localities in the United States are beginning the slow process of fundamental change. The question is no longer whether it makes sense to debate the place of animals in our society. Rather, the issue has already been raised. The question now is how that debate should be conducted and how the questions raised should be resolved. Endnotes