ESSAYS, Study notes of Philosophy

Download ESSAYS and more Study notes Philosophy in PDF only on Docsity! \\Server03\productn\L\LCA\8-1\LCA102.txt unknown Seq: 1 3-MAY-02 12:47 ESSAYS POLITICAL IDEOLOGY AND THE LEGAL STATUS OF ANIMALS By Robert Garner* This essay argues that the benefits of changing the legal status of animals from their current position as items of property have been exaggerated. This assertion is based on the arguments that abolishing the property status of animals is not a sufficient guarantee that they will cease to be exploited and that, whilst the abolition of animals’ property status is a necessary step to- wards the fulfilment of an animal rights agenda, it is incorrect to suggest that significant improvements to their well-being cannot be achieved from within the existing property paradigm.** I. INTRODUCTION This essay considers a number of the claims made by animal advo- cates and legal scholars about the relationship between property and the well-being of animals. The first claim is that the notion of equal consideration of animal and human interests cannot be achieved un- less the property status of the former is removed. More contentiously, it is also argued by some that the property status of animals is not even compatible with the most basic protection of animals.1 This latter argument, described by Tannenbaum as the “activist’s view” of the law * Dr. Garner is Reader in Politics, and Chair of the Politics Department at the Uni- versity of Leicester in the United Kingdom. He has published widely on environmental issues in general and the politics and philosophy of animal rights in particular. His books include Animals, Politics, and Morality and Political Animals: The Politics of Animal Protection in Britain and the United States. He is currently studying the rela- tionship between political theory and animal rights. ** Animal Law has retained the author’s original voice to the fullest extent possible, including his use of British spellings. 1 See generally Gary L. Francione, Animals, Property and the Law (Temple U. Press 1995); Gary L. Francione, Rain Without Thunder: The Ideology of the Animal Rights Movement (Temple U. Press 1996); Thomas Kelch, Toward a Non-Property Status for [77] \\Server03\productn\L\LCA\8-1\LCA102.txt unknown Seq: 2 3-MAY-02 12:47 78 ANIMAL LAW [Vol. 8:77 relating to animals,2 contains a number of interrelated claims: 1) that animals are regarded as little more than inanimate objects; 2) that de- spite the existence of anti-cruelty statutes the most fundamental inter- ests of animals are more often than not sacrificed in favour of even trivial human interests; and 3) that these statutes are invariably con- cerned, not with the direct protection of animals, but with the moral character of humans who, without legal constraints, might be tempted to behave in an inhumane fashion. This essay suggests that all of these claims are contestable—that is, the benefits of changing the legal status of animals from their cur- rent position as items of property can, contrary to the opinion of many animal advocates, be exaggerated. There are two main dimensions to this contention. The first is the argument that abolishing the property status of animals is not a sufficient guarantee that they will cease to be exploited. The second is that, whilst the abolition of animals’ property status is a necessary step towards the fulfilment of an animal rights agenda, it is incorrect to suggest that significant improvements to ani- mals’ well-being cannot be achieved from within the existing property paradigm. This error is, partly at least, a product of a failure to recog- nize that the degree to which the welfare of animals can be sustained and improved is not a determinant of their legal status but is a product of first-order political factors, not the least of which is the prevailing ideological climate. More specifically, it is suggested that a version of liberalism prominent in the West, and particularly the United States, seriously compromises the welfare of animals. II. THE PANACEA OF PROPERTY There is a consensus among animal law scholars, and many in the animal rights movement, that abolishing the legal status of animals will open the door to an animal rights Garden of Eden where liberated animals will cease to be systematically exploited by humans.3 It is ar- gued here that, although abolishing the property status of animals is a necessary step towards the achievement of an animal rights agenda whereby animals are regarded as the moral equals of humans, it is by no means a sufficient one. That is, there are a number of reasons to suppose that without any additional changes, animals would continue to be exploited even if their property status were abolished. A. Benefiting from Human Ownership In the first place, not all animals are regarded as the property of private citizens, yet this has not prevented them from being merci- Animals, 6 N.Y.U. Envtl. L.J. 531–85 (1998); Steven M. Wise, Rattling the Cage: To- ward Legal Rights for Animals (Perseus Books 2000). 2 Jerrold Tannenbaum, Animals and the Law: Property, Cruelty, Rights, 62 Soc. Research 539, 540–41 (1995). 3 The author is referring to exploitation such as that which occurs on factory farms, in biomedical facilities, and in the entertainment context. \\Server03\productn\L\LCA\8-1\LCA102.txt unknown Seq: 5 3-MAY-02 12:47 2002] POLITICAL IDEOLOGY 81 A related point is that the granting of rights is arguably not the best way of identifying responsibility for wrongdoing in the setting of institutional exploitation.14 In such a setting, the issue of ownership is also confused. Rights are individualistic in the sense that they assume the existence of an agent who can be held responsible. For a case of cruelty to companion animals, this model is usually appropriate be- cause it is possible to identify a distinct transgressor. Such a model is not really appropriate, on the other hand, for the institutional ex- ploitation of animals which occurs mainly on factory farms and in labo- ratories, since it is difficult, in such cases, to identify who is responsible for the infringement of rights. In the case of animal agri- culture, for instance, who is responsible for the plight of animals reared for food? Is it the farm hand, the owner of the farm, agribusi- ness companies who provide the equipment, the retailer of the finished product, or the consumer? In addition, of course, the implication of re- moving the property status of animals is that it is the owner who is the most likely to infringe the rights of his or her animals.15 III. ANIMAL WELFARE WITHIN THE PROPERTY PARADIGM Altering animals’ property status would undoubtedly increase the prospects for protecting them. Clearly, whilst animals remain property they cannot have the full entitlement of rights, and especially the right to be free from exploitation, that animal rights advocates insist they should have. Ownership implies entitlements to the owner and, while (as is discussed below) it does not necessarily translate into a right to do as one pleases, the case for restricting property rights has to be made on each occasion and for good reason. In other words, while ani- mals remain property they cannot be said to have rights in the strict sense of an entitlement (in the negative sense of the term) to be left alone unless an infrigment can be justified. The obvious parallel here is to human slavery where, irrespective of the treatment meted out to slaves, they were regarded as lacking some basic entitlement that was granted to free humans.16 The consequences of abolishing the property status of animals is summed up neatly by Tannenbaum: [I]t would be impossible to buy or sell animals, to pass their ownership on through inheritance, to tax their value, or to use them in a myriad of ways 14 By “institutional exploitation,” the author refers to that which occurs, for exam- ple, in factory farms and research laboratories. 15 Quite clearly, this is not always the case because as previously discussed, the owner of an animal can sometimes be the source of protection against non-owners. See supra section IIA. 16 For example, the U.S. Supreme Court in Scott v. Sanford held that “Negroes” were “property” and not “citizens.” 60 U.S. 393 (1856). The Court cited the U.S. Consti- tution as support for its holding, stating that “the right of property in a slave is dis- tinctly and expressly affirmed in the Constitution.” Id. at 451. For further reading on the parallels between human and animal subjugation, see Marjorie Spiegel, The Dreaded Comparison (rev. expanded ed., Mirror Books 1996). \\Server03\productn\L\LCA\8-1\LCA102.txt unknown Seq: 6 3-MAY-02 12:47 82 ANIMAL LAW [Vol. 8:77 (such as sources of food and fiber) that will continue to be regarded as ac- ceptable by the great majority of people.17 In other words, if the aim is to secure for animals the equal consid- eration of their interests with those of humans, then it is necessary to abolish their property status. Still open to debate, however, is the degree to which animals can be protected whilst they still have property status. Logically, this will be dependent upon the degree to which any particular state and soci- ety is willing to sanction interfering in an individual’s property right in order to benefit animals. In theory, such an eventuality is clearly pos- sible, even to the point where the state can prohibit private citizens from owning animals.18 Even within rights discourse, rights are not necessarily regarded as absolute, since there are always occasions when we have to consider intervening in order to protect other rights.19 Many, from other traditions such as utilitarianism, also recognise a case for sacrificing the important interests of individuals in pursuit of the general good or the maximization of preferences.20 In practice, all societies are prepared to intervene to restrict property rights in order to achieve desired ends.21 This does not just apply to sentient animals. There are even limits to what individuals may do with inanimate objects they own if infringing property rights is per- ceived to result in the securing of other valued human ends.22 It is undoubtedly the case that there are many inadequate animal welfare laws. As such, animals often lose out to relatively trivial human interests—either because the laws have limited scope, because courts interpret them in a conservative fashion, or because they are badly enforced.23 However, the existence of poor statutory protection for animals has nothing to do with the property status of animals, and those who link the two are making an assumption that is not sup- ported by the evidence. It is clearly possible to envisage a situation 17 Tannenbaum, supra n. 2, at 593. 18 Id. at 556. 19 Richard B. Brandt, Morality, Utilitarianism, and Rights 184 (Cambridge U. Press 1992). 20 The major nineteenth century utilitarian thinkers were Jeremy Bentham, James Mill, and John Stuart Mill. More recently, two utilitarians who have also written about animal issues are Peter Singer, Animal Liberation (2d ed., Cape 1990), and R. G. Frey, Interests and Rights: The Case Against Animals (Oxford U. Press 1980). 21 Tannenbaum, supra n. 2, at 555–56. 22 The best example here is legislation designed to control what owners do to those buildings regarded as important for historical and/or aesthetic reasons. 23 See generally Francione, Animals, Property and the Law, supra n. 1; Robert Gar- ner, Political Animals: Animal Protection Politics in Britain and the United States (Macmillan 1998); Kelch, supra n. 1, at 540–44; David Wolfson, Beyond the Law: Agribusiness and the Systemic Abuse of Animals Raised for Food or Food Production (2d ed., Farm Sanctuary 1999). \\Server03\productn\L\LCA\8-1\LCA102.txt unknown Seq: 7 3-MAY-02 12:47 2002] POLITICAL IDEOLOGY 83 where anti-cruelty regulations “trump property rights when they con- flict,”24 and effective animal protection statutes do just that. Although the general anti-cruelty statutes that depend upon the difficult task of proving unnecessary suffering are not particularly ef- fective, even these have some worth.25 As Tannenbaum remarks, how- ever, “there is nothing in cruelty laws that prohibits the legal system from giving certain animal interests greater weight than has been done in the past.”26 It should be noted that the general anti-cruelty statute approach is not the only animal welfare model. In Britain, for instance, the value of the primary statutes governing animal agricul- ture—the 1968 Agricultural (Miscellaneous Provisions) Act27—and animal experimentation—the 1986 Animals (Scientific Procedures) Act28—is not so much in the basic unnecessary cruelty prohibitions they both contain, but in the potential they afford for abolitionist regu- lations to be added. For example, regulations banning veal crates and sow stalls and tethers have been added under the 1968 Act,29 and a decision prohibiting cosmetic testing of finished products and the use of wild-caught primates for biomedical research was made under the auspices of the 1986 Act.30 A related argument espoused by critics of the property status of animals is that the inability of animal advocates to gain legal standing under anti-cruelty statutes has meant that it is difficult, albeit not im- possible, to assert the interests of animals in the judicial system. For some critics, this is a direct consequence of animals being regarded as private property and not having legal rights.31 Clearly, animals do not have the right to legal standing, but this is not the same as saying they do not have legal rights. Under state and federal criminal laws, private citizens do not have the right to sue criminals, and yet we do not gen- erally consider that the rights of the victims of crime have been in- fringed upon as a result. This is because, as in anti-cruelty statutes, public prosecutors perform the representative role. The fact that anti- cruelty statutes are weak, or that public prosecutors and courts are not interested in animal cruelty cases is a distinct issue, and neither is caused by the lack of a right to legal standing for animals. The exis- tence of legal rights for animals is therefore independent from the is- sue of standing. 24 Petra Renée Wicklund, Abrogating Property Status in the Fight for Animal Rights, 107 Yale L.J. 569, 574 (1997). 25 See Michael Radford, “Unnecessary Suffering”: The Cornerstone of Animal Protec- tion Legislation Considered, Crim. L. Rev. 702 (Sept. 1999). 26 Tannenbaum, supra n. 2, at 586. 27 Agricultural (Miscellaneous Provisions) Act, 1968, (Eng.), summary available at <http://www.defra.gov.uk/animalh/welfare/publications/legislation/sumoflaw.htm> (ac- cessed Jan. 22, 2002). 28 Animals (Scientific Procedures) Act, 1986, (Eng.). 29 The Welfare of Calves Regulations, 1987, (Eng.). 30 See Michael Radford, Partial Protection: Animal Welfare and the Law, in Animal Rights: The Changing Debate, 67–91 (Robert Garner ed., N.Y.U. Press 1996). 31 See e.g. Kelch, supra n. 1, at 535–37. \\Server03\productn\L\LCA\8-1\LCA102.txt unknown Seq: 10 3-MAY-02 12:47 86 ANIMAL LAW [Vol. 8:77 nent as a guiding set of principles in the United States than in Britain, or any other country for that matter. Classical liberalism puts great emphasis on the removal of constraints from individuals. The best- known account is John Stuart Mill’s “harm” principle whereby, provid- ing that an individual’s actions remain self-regarding, they remain le- gitimate and only when they become other-regarding does the state or society have the right to intervene.43 The value or purpose of private property, in the context of Mill and the liberal position, is that it pro- vides an arena of autonomy for individuals. There has to be a very good reason, then, for intervening to constrain or limit what individuals do with their private property. Due to the prevailing liberal ideology, there is a general reluc- tance to restrict property rights in the United States. This does not just affect the treatment of animals, of course, but also other aspects of American life. The classic case is the unwillingness of successive gen- erations of American politicians to limit the control of guns,44 whereas, by contrast, the British Parliament quickly outlawed the ownership of handguns little more than a year after one major shooting incident in Dunblane, Scotland in March 1996.45 Since animals are also regarded as property it might be suggested that there is a greater reluctance in the United States than in Britain to intervene to protect animals against their owners. It may seem from this that altering the property status of animals in the United States, if not Britain, is necessary even to provide a moderate level of animal protection. However, the reluc- tance of the legal and political systems to intervene in property rights to protect animals is itself a product of a society that does not give the welfare of animals a very high priority. In other words, it is not the property status of animals that is ultimately the main problem: it is a disinterested public and a political system dominated by economic in- terests which stand to lose in the event of tighter and more stringent animal protection legislation. IV. ANIMALS AND THE LIBERAL THEORY OF JUSTICE These economic interests are aided by a particular version of liber- alism that excludes animals from a theory of justice. It is important to recognise that liberalism is not necessarily incompatible with animal protection. Rather, animals are vulnerable to a version of liberalism that excludes them from a theory of justice, and, significantly, this type of liberal theory is particularly associated with the American po- 43 See generally John Stuart Mill, Utilitarianism, On Liberty, and Considerations on Representative Government (Dent 1993). 44 For a discussion regarding various obstacles to gun control in the United States, see Thomas J. Walsh, The Limits and Possibilities of Gun Control, 23 Cap. U. L. Rev. 639 (1994). 45 1997 Firearm Act. For information regarding the Dunblane incident, see Remem- bering Dunblane <http://www.dunblane.braveheart.com/dunblane.htm> (accessed Nov. 20, 2001). \\Server03\productn\L\LCA\8-1\LCA102.txt unknown Seq: 11 3-MAY-02 12:47 2002] POLITICAL IDEOLOGY 87 litical philosopher John Rawls. Unfortunately for animals, Rawls’ ac- count, found in his book A Theory of Justice,46 is regarded by many as the most important work of political philosophy to be written since the Second World War, if not in the twentieth century.47 Even more signif- icantly, there is some evidence that the theory has a practical resonance in the way that animals are actually treated in liberal socie- ties, and particularly the United States.48 There is no reason in a liberal polity why animals cannot be incor- porated into a theory of justice. Mill’s harm principle, for instance,49 can be adapted to include animals. From an animal rights perspective, where the case for an enhanced moral status for nonhumans has been accepted, actions that harm animals become other-regarding and therefore illegitimate. Indeed, it is significant that, almost without ex- ception, the case for a higher moral status for animals has been made from within the liberal tradition, whether it be a rights-based ap- proach associated in particular with Regan,50 a utilitarian approach associated with Singer,51 or a contractarian approach associated with Rowlands.52 If we accept an animal welfare position, whereby animals matter morally but not as much as humans, the harm principle can be adapted to take into account the fact that harm inflicted on animals which can be shown to serve significant human benefits is regarded as legitimate, but that harm which is unnecessary to further human in- terests is ruled out. The problem occurs where, as in the liberalism associated with Rawls, and other leading names in political philosophy such as Brian Barry,53 the harm principle does not apply because animals are ex- cluded from a theory of justice. Rawls writes that human “conduct to- ward animals is not regulated by the principles of justice, because only “moral persons . . . [are] entitled to equal justice.”54 Two features dis- tinguish this moral personhood. Firstly, moral persons are capable of having . . . a conception of their good [as expressed by a rational plan of life]; and second they are capable of having . . . a sense of 46 John Rawls, A Theory of Justice 504 (Oxford U. Press 1972). 47 See Chandran Kukathas & Philip Pettit, Rawls: A Theory of Justice and Its Crit- ics 16 (Stanford U. Press 1990) (A Theory of Justice is “the testament of political theory reborn.”). 48 Examples of this, including vegetarianism as choice and issues such as hunting and ritual slaughter, are discussed infra Section V. 49 See generally Mill, supra n. 43. 50 See generally Tom Regan, The Case for Animal Rights (U. Cal. Press 1983). 51 See generally Singer, supra n. 20. 52 See generally Mark Rowlands, Animal Rights: A Philosophical Defence (Macmil- lan 1998). 53 See Brian Barry, Sustainability and Intergenerational Justice, in Fairness and Futurity: Essays on Environmental Sustainability and Social Justice 71 (A. Dobson ed., Oxford U. Press 1999). 54 Rawls, supra n. 46, at 504. \\Server03\productn\L\LCA\8-1\LCA102.txt unknown Seq: 12 3-MAY-02 12:47 88 ANIMAL LAW [Vol. 8:77 justice, a normally effective desire to apply and to act upon the principles of justice, at least to a certain minimum degree.55 Under this rationale, only those who can understand what it is to be just, and are able to claim it for themselves and respect the rights of others, are entitled to be beneficiaries of justice. Despite excluding animals from a theory of justice, Rawls, Barry, and others clearly accept that what is done to animals matters mor- ally, and that there should be some restrictions on the way they are treated. This apparent contradiction can be explained by the fact that these thinkers seem to be making the point that justice is a much nar- rower area of inquiry than ethics. For Rawls, “a conception of justice is but one part of a moral view” in that a “political” conception of justice is narrower than a comprehensive view because it only concerns the basic political structure and not “all kinds of subjects ranging from the conduct of individuals and personal relations to the organization of so- ciety as a whole.”56 Rawls is arguing that the treatment of animals should be dis- cussed in the arena of morals rather than the arena of justice. How- ever, the effect of excluding animals from a theory of justice is problematic for animals in a liberal society because a basic principle of most liberal theories is the assumption that it is no business of a lib- eral society to advocate one conception of the good over another.57 In other words, any genuine liberal political theory must include an anti- perfectionist principle of moral pluralism. This is the idea, derived from a wider theory of liberty, that it is no business of the state or society to interfere in individual moral codes or individual conceptions of the good life. As Rawls points out, “[w]hich moral judgments are true . . . is not a matter for political liberalism,” and the difference between this position and that which holds that “there is but one such conception [of the good] . . . to be recognised by all citizens [is] . . . one of the deepest distinctions between conceptions of justice.”58 A liberal state, then, is one that is based on protecting individual rights rather than pursuing certain goals to which the individual must be subsumed. Taking this liberal theory to its logical conclusion, the treatment of animals becomes a matter of individual moral choice rather than a matter of justice. Thus, my conception of the good might include a com- mitment to the well-being of animals, but I am not entitled to impose it upon others, and likewise, others must respect my conception of the good whilst not having to follow it themselves. In other words, to use 55 Id. at 505. 56 Id. at 512; see John Rawls, Political Liberalism 12–13 (Columbia U. Press 1993). 57 See e.g. Anthony Arblaster, The Rise and Decline of Western Liberalism 45 (Blackwell 1984); Brian Barry, Justice as Impartiality 77 (Clarendon Press 1995); Ste- phen Mulhall & Adam Swift, Liberals and Communitarians 30 (Blackwell 1992); Ray- mond Plant, Modern Political Thought 77 (Blackwell 1991). 58 Rawls, supra n. 56, at 134. \\Server03\productn\L\LCA\8-1\LCA102.txt unknown Seq: 15 3-MAY-02 12:47 2002] POLITICAL IDEOLOGY 91 This applies whether or not animals are regarded as the property of humans. VI. CONCLUSION The aim of this essay has been to make a contribution to the ongo- ing debate about the legal status of animals. It suggests that the case for moderating or abolishing the property status of animals has been exaggerated. It is neither a sufficient nor necessary step towards a rel- atively high level of protection for animals. It is not a sufficient guar- antee of animal liberation, because animals not regarded as property have been shown to be vulnerable to exploitation, because proclaiming rights does not necessarily mean they will be upheld in practice, and because the individualistic language of rights may not be the most suitable vehicle to ensure the protection of animals subject to institu- tional exploitation in factory farms and laboratories. It is the case that animals cannot have the full panoply of rights while they remain the property of humans. However, this essay also suggests that it is not necessary to abolish this property status in order to ensure a high degree of animal protection. In other words, animal rights may be incompatible with the ownership of animals, but animal welfare need not be. It is possible to chip away at the property rights of the owners of animals, and envisage a future where the property sta- tus of animals is deemed unacceptable. Crucially, though, at that point it will be unnecessary to formally abolish the property status of ani- mals because legislative activity will already have made it redundant. Further support for the arguments in this essay comes from a comparative analysis which illustrates that it is not the property sta- tus of animals that accounts for the differential animal welfare achievements in, for example, Britain and the United States. Instead, we have to look elsewhere for explanatory variables. There is convinc- ing evidence that differential animal protection achievements can be explained by the impact of political and social factors, backed by a dominant form of liberalism in the United States that excludes ani- mals from a theory of justice. According to this liberal doctrine of moral pluralism, individuals should be left alone to pursue their own conceptions of the good life, and the state and society should not inter- vene to impose one particular moral code over another. As a result, the treatment of animals becomes subject to moral preferences rather than legal compulsion. \\Senver03 \productn\ L\LCA\S-1\LCA102,tx¢ ‘unknown Seq 16 BMAV02 1247