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(to be completed)

the incremental movement toward abolition

Here is some commentary on the question. It's an excerpt from 48 Rutgers Law Review 397, 448-468, ANIMAL RIGHTS AND ANIMAL WELFARE Copyright 1995 by Gary L. Francione. Portions of this article are taken from the book Rain Without Thunder. Footnotes are omitted.

CRITERION #1: An Incremental Change Must Constitute a Prohibition

...Thus the first criterion for any incremental change, beyond the incremental education of the public about the need to abolish institutionalized animal exploitation, is that it must prohibit some reasonably identifiable behavior. This prohibition must also correlate with the ability of the animal to claim (through a representative) the protection of the right.

The requirement that there be a prohibition, and not merely a regulation that requires "humane" treatment, is sometimes phrased as requiring the "abolition" of a particular practice. Although this is a correct description of the matter, it can cause confusion by equating the abolition of institutionalized animal exploitation with incremental measures that, it is hoped, will lead to that abolition. On the first level of moral theory, animal rights theory is clearly "abolitionist" in that its long-term goal is the complete eradication of institutionalized animal exploitation. What we are examining now is whether there are adequate criteria that can be used to identify incremental means to the long-term goal.

To say that the incremental means must themselves be "abolitionist" is correct if the definition includes prohibitions against reasonably identifiable conduct which, if engaged in, would constitute a failure to respect a particular animal interest. But these incremental means are by definition not "abolitionist" in the sense that no one incremental prohibition will effect the long-term goal of ending animal slavery. In order to avoid confusion, it is better to reserve the use of "abolition" for the long-term goal of rights theory, and "prohibition" as one criterion of incremental measures that seek to realize that long-term goal....

CRITERION #2: There Must Be a Prohibition of an Identifiable Activity That is Constitutive of the Exploitative Institution

Consider the following proposals:

Proposal 1: Reduce the number of hens confined in a battery cage (usually floor space is a twelve inch square) from four hens to three hens.

Proposal 2: Criminalize the use of animals in drug addiction experiments.

These proposals cannot be distinguished using the first criterion alone, because, for the reasons stated above, both of these can be considered to involve prohibitions. Although Proposal 2 accords more with the notion of a prohibition, Proposal 1 can be conceptualized as a prohibition on keeping four chickens in a cage.

This is not to say, however, that there are no distinctions between Proposal 1 and Proposal 2. With respect to the criminalization of the use of animals in a certain type of experiment, a particular activity that is constitutive of the general practice of vivisection has been stopped.

...[E]ven if the elimination of the battery cage and the substitution of the small hen house constitute a prohibition of an activity (i.e., the use of the battery cage), that proposal implicates the problem that the change nevertheless continues to sanction the exploitation of the hens, albeit in a different form.

CRITERION #3: The Prohibition of a Constitutive Activity Must Recognize and Respect a Non-Institutional Animal Interest

Although there is some controversy over whether animals can be said to have "interests," as has been discussed elsewhere, for good reasons, most people, including those who exploit animals, regard nonhumans as having a wide range of interests. The law supposedly protects animal interests. The problem is that for the most part, these interests are those that facilitate the exploitation of animals for a particular property use. For example, the law protects the interests of animals used in experiments to the extent necessary to ensure that the animal produces data of the quality considered acceptable by research scientists. Indeed, those who support the use of animals in experiments assure the public that "only those animals that are cared for properly will be good research subjects," and that the federal Animal Welfare Act and other sources of regulation provide for the requisite care. In this sense, each form of institutionalized exploitation will have rules about the "humane" care of animals that are tailored to that particular use of animal property and that reflect the particular concerns of that exploitative activity.

To the extent that we seek the incremental eradication of the property status of animals, it is necessary that there is a corresponding recognition of the interests of animals in not being regarded as property, or, as Regan would say, in not being treated exclusively as a means to human ends. ...To eradicate the property status of animals, there must be a recognition of an interest that is noninstitutional, or that is not simply an interest that ensures the animal is used "wisely" in a context of exploitation. It is only through recognition of extra or noninstitutional interests that incremental eradication of property status can be achieved; recognition of institutional interests, such as the interest of a turkey destined for slaughter in being fed, merely reinforces and supports the property status of animals. ...

CRITERION #4: Animal Interests Cannot Be "Tradable"

...If there is to be an incremental eradication of the property status of animals, then there must be a recognition that animals have interests that go beyond those interests that must be respected if we are to exploit animals efficiently. And, following the second salient assumption of animal rights theory, these non-institutional interests cannot be tradable just because the aggregation of consequences indicates that the trade is justified to secure the human "benefit." Indeed, animals are property precisely because animals have no interests (beyond those that must be observed if the animals are to serve their "purpose" as our property) that are safe from being balanced away as soon as some human "benefit" is identified.

In one sense, this criterion seeks to ensure that the incremental eradication of property status is indeed an incremental "assembly" of personhood status for nonhumans through the recognition of the inherent value of animals. At present, we do not recognize animals as having any value except for their value to us. For example, philosopher Joseph Raz claims that although animals may have some value apart from their instrumental use to people, animals cannot have inherent value because any value of the animal ultimately derives from the animal's contribution to the happiness and well-being of some human or humans, who do have inherent value. Raz's views are representative of many people's views. The fourth criterion ensures that each incremental move provides for and protects some notion of the inherent value of animals.

In one sense, this criterion could be said to address the enforceability of protection for recognized interests. One could say that under slavery as practiced in the United States, there were some laws that seemed to recognize that slaves had interests other than ones directly related to keeping a slave alive and fit for whatever purpose the slave was intended. For the most part, however, these interests were ignored whenever they conflicted with the interests of the master whose property rights were held to outweigh the slave's interests. If animal interests are to be taken seriously, then, to the extent that the law regulates the use of animal property beyond what is necessary to exploit the animal property, that regulation must be held as eliminating the property right to the extent necessary to protect the interest. Otherwise, the victory for animals will be illusory; as soon as the rights of human property owners are triggered, the animal interest will be ignored.

Accordingly, the interest of the animal must be seen explicitly as an interest that is to be protected as would a true "right" within the legal system. The interest would not be a "right" in the full sense in that since animals would not yet possess the basic right not to be regarded as property (they would still be used for food and in experiments), they would have nonbasic rights that could be said to be building blocks of the basic right not to be property. These nonbasic rights must, however, be treated as though they were rights in the sense that they will be regarded as protecting interests that are not subject to interest balancing.

To protect animal interests in this manner would require a very deliberate and intentional recognition of a type of legal norm that our legal system does not yet recognize: a norm that functions like a true right in that it recognizes an interest that cannot be balanced away, but that is held by a being who has not yet achieved the status of being a holder of the basic right not to be regarded exclusively as a means to an end. Indeed, every time we recognize such a right, we move away from treating the being exclusively as a means to human ends; the problem is that the being's most fundamental interests in not being eaten or used in experiments or kept in a zoo have not yet been recognized. These incremental measures may be seen, however, as recognizing pieces of the basic right not to be regarded as property. So, although these interests represent nonbasic rights in one sense (the animal does not yet by definition have the basic right of not being property), the interests are more properly regarded as "parts" of the basic right of animals not to be treated exclusively as means to human ends.

..In order to recognize that animals have such interests, it is necessary that these interests be understood as trumping the interests of property owners. And in order to be effective, it would be necessary for the legal system to recognize that it is animals who hold this interest, and not their owners or government agencies, such as the USDA, which protects only those animal interests that make animals property in the first place. It would be necessary to recognize that animals (or, more properly speaking, the guardians of animals) have standing to articulate these interests against property owners, which would functionally require that some sort of guardian be recognized.

Because animals are regarded as property, and property is, by definition and several hundred years of accepted understanding, that which cannot have legal relations with persons or other property, courts have developed doctrines that preclude animals or their surrogates from articulating their interests in courts of law and before regulatory agencies. This exclusion is based on the supposed inability (in terms of the power of the court) to adjudicate claims made by property or those who purport to represent that property. So, if the ... non-institutional interests of animals are to be non-tradable, then those interests, which must be seen as recognizing "minitrumps" of the property rights of animal owners, must be protected by the legal system. This will require that animal interests have legal standing and that some human actor (and this could be the police) have standing to articulate those claims before the appropriate body. This is, of course, not a new idea. In Should Trees Have Standing? -- Toward Legal Rights for Natural Objects, Christopher Stone argued that the inherent value of nonhumans could be recognized and protected by guardians just as are the rights (basic rights and nonbasic rights) of children or the mentally disabled.

CRITERION #5: The Prohibition Should Not Substitute an Alternative, and Supposedly More "Humane" Form of Exploitation

This fifth criterion follows from both aspects of rights theory identified at the outset of this section: that rights theory requires eradication of the property status of animals and that the right of animals not to be regarded as property cannot be compromised for consequential reasons. In many respects, this fifth criterion is the most significant of the group because it often will be the most helpful in determining whether a proposed incremental measure is consistent with rights theory, although, like the other criteria, this one is not exact and will not provide an easy answer in all cases. But then, the idea is to try to make a morally informed decision, and not necessarily one that is always right.

The fifth criterion holds that it is inconsistent with rights theory to treat some animals exclusively as means to the ends of others, or as property, in order to secure some benefit that it is hoped will eventually secure a higher moral status for other animals. This is a serious problem for the new welfarist who purports to endorse the long-term goal of animal rights by using short-term welfarist reforms as a means to the end of abolition of institutionalized exploitation.

The new welfarist disregards the inherent value of some animals in order to secure a benefit for other animals. For example, the federal Animal Welfare Act provides that animals may be used in biomedical experiments as long as their use is "humane" and they are not forced to suffer "unnecessarily." The new welfarists, who supported the 1985 amendments to the Act, believe that the Act will itself reduce animal suffering, but more importantly, that laws like the Act are "stepping stones" to the future recognition and respect of animals other than the ones whose interests are now being ignored. This Article argued earlier that there is simply no way to determine whether laws like the Act actually reduce animal suffering, and that, given the structural defects of welfare theory generally, such laws will generally be held only to require that conduct that facilitates the use of the animal as property. Apart from the rather puzzling logic of how we get to a non-property status of animals by persistent reinforcement of the property paradigm, there is something objectionable on a theoretical level when a rights advocate explicitly endorses the property status of animals as a way of eradicating that status on an incremental basis.

...So, for example, a complete prohibition on the use of chimpanzees in certain procedures can reasonably be said to constitute the prohibition of a constitutive activity, but to the extent that the advocate urges or accepts that other animals, such as dogs, should be used instead...such a rule would violate the fundamental proscription against speciesism.

In order to understand more fully the point of this fifth criterion, consider the following example: animal advocates propose to lobby for a law the preamble of which explicitly recognizes that animals have moral interests and the current configuration of battery hens per cage disrespects those moral interests. The body of the law provides that in recognition of the interests that hens have, no more than two shall be placed in battery cages, and these cages shall be enlarged to provide 196 inches of floorspace rather than 144 inches. The egg industry objects to this arrangement vehemently as it is "unnecessary" to maximize the value of animal property and will, in fact, impose a very significant cost on the ownership of animal property in this context. The law provides that this interest must be protected irrespective of the economic consequences and contains penalties to ensure that the interests are not recognized subject to complete defeasance through a claim of human "benefit."

The traditional welfarist would undoubtedly support this measure because it will, in the welfarist's view, reduce animal suffering. The new welfarist, who seeks as a long-term goal the abolition of animal exploitation, will also undoubtedly support this, not only because it will supposedly reduce suffering, but because it is a "stepping stone" or "springboard" into abolition at some future time. The new welfarist and the traditional welfarist have the same view -- that the measure will reduce suffering -- but the new welfarist, unlike the traditional welfarist, believes that because the measure will reduce suffering, it will act as an incremental measure on the road to the long-term goal.

The animal rights advocate first dismisses the view that avoiding pain and suffering are the only interests that animals (human or nonhuman) have. If pain and suffering were the only relevant moral interests, then what would prevent us from using small numbers of "undesirable" humans to eradicate large amounts of human pain and suffering? Obviously, although we all have strong interests in avoiding pain and suffering, we do limit the ways in which pain and suffering can be alleviated so as to respect other interests -- such as the rights of humans (and nonhumans) -- as well. Second, the rights advocate dismisses the new welfarist view, also articulated by Singer, that a measure that reduces pain and suffering will lead to incremental achievement of the long-term goal of equal consideration for equal interests (Singer) or the abolition of all institutionalized exploitation (Regan) simply because it supposedly reduces pain and suffering. The rights advocate knows that some measures that supposedly reduce pain and suffering will do nothing more than assure that animals receive protection that is consistent with their status as property, and that facilitates their use as particular types of property.

The rights advocate begins by asking whether the proposal contains a prohibition or a regulation, and concludes that the proposal prohibits keeping more than two hens in the cage. She is unclear as to whether, even if the proposal is a prohibition, it constitutes a prohibition of an activity that is constitutive of the overall form of exploitation. She errs in favor of regarding the measure as prohibiting a constitutive activity. She is clear, however, that the proposal provides for the recognition of an interest that is extra-institutional in that it provides for the recognition of an interest that is not tied to the property status of the hens. The proposal recognizes that the hens have inherent value beyond their status as property, which would justify only that level of regulation that facilitated animal use. Moreover, the proposal provides that these interests cannot be traded away and constitute proto-rights.

The problem with the proposal is that it is, on its face, not only consistent with the status of animals as property that, as a general matter, lacks inherent value, but does so in a way that explicitly trades away the basic right of the hens not to be property in favor of a recognition of moral status that falls short of recognition of the basic right, or the complete protection of some interest that the animal has in, for example, bodily movement. By agreeing to the two-hen arrangement, animal advocates are trying to achieve proto-rights while at the same time endorsing an alternative form of exploitation -- two hens in a cage -- that is supposedly more "humane."

In the present case, it seems reasonable to say that the interest involved is the interest that the hens have -- all of them -- in not being in the battery cage in the first place and in having freedom of movement that is appropriate to the species. To the extent that the proposal recognizes and respects that interest, then the prohibition arguably does not substitute another form of exploitation and is acceptable. That is, assume that a prohibition abolishes the battery cage entirely and replaces it with a rearing system that accommodates all of the hen's interests in freedom of movement and thereby fully recognizes the interest of the hen's bodily integrity. Such a state of affairs may be another way of saying that the prohibition ends a particular form of exploitation that has violated a particular non-institutional, non-tradable interest that we have now decided to respect. But this sort of substitution differs considerably from merely removing two of the hens from the cage in that although we have not yet abolished the institutionalized exploitation, the substitution eliminates the exploitation involved in the confinement system through a full recognition of the interest of the hens in their freedom of movement.

In any event, any substitution of exploitation raises serious questions for the rights advocate. If the incremental eradication of the property status of animals is going to be consistent with rights theory, it is important that proposed measures not substitute one form of exploitation for another, supposedly more "humane" form of exploitation. Oftentimes, the alternative form of exploitation will provide in general terms for "humane" treatment, which then feeds the whole matter right back through the mechanisms of legal welfarism which, as argued before, are structurally defective and systematically devalue animal interests. But even if the substitute form of exploitation is more definite (i.e., there shall be no more than two birds per cage), and even if the proposal recognizes that the animals have some inherent value that justifies the recognition of a non-institutional, non-tradable interest, that recognition comes at the expense of endorsing another form of exploitation that rests on the legitimacy of the status of animals as property. This sacrifices the moral right of the animal not to be property for a proto-right that is designed to effect the incremental eradication of property status. The substitution of exploitation raises issues of moral conflict with rights theory, and incoherence in light of the fundamental assumptions of that theory.

This discussion does serve, however, to demonstrate that as a practical matter, certain campaigns will be difficult for animal rights advocates to pursue if they agree with this fifth criterion. It seems that the rights advocate really has no choice but to condemn any form of substitute exploitation, unless that alternative arrangement completely eradicates an activity constitutive of animal exploitation through the full recognition of relevant animal interests. The animal advocate must not herself suggest an alternative, and must not agree to any alternative offered by the exploiter. To do either would involve the rights advocate sacrificing the basic right of animals not to be property in order to secure a less-than-basic proto-right that, while it does recognize and respect that animals have person-like interests that transcend their status as property, is achieved at the cost of reinforcing the notion that a "better" system of animal slavery is acceptable. These considerations would militate in favor of conducting the sort of campaign that may not succeed (at least initially), but that will have a potentially powerful effect on educating members of the public about animal exploitation. And in many respects, such education, whether sought directly in the classroom or as part of a militant campaign such as one that supports a law to demand the end of the egg battery and that urges no substitute form of exploitation (rather than a reactionary and conservative welfarist campaign to make the matters more "humane" for the hens) is probably the best thing that the animal rights advocate can do at this stage of history in any event.