BOOKS: Animals, Property and the Law

From ANIMAL PEOPLE, December 1996:

Animals, Property and the Law by Gary L. Francione
Temple University Press (Broad & Oxford Streets, Philadelphia, PA 19122), 1995. 349 pages, paperback, $22.95.

Animals, Property and the Law argues that animals
have no rights under existing animal welfare laws. People may
think that laws prohibiting “unnecessary suffering” and requiring
“humane” treatment give animals certain rights, such as the
right to be free from cruelty and abuse, but in fact these laws
only prevent economically inefficient use of animal property.
This is because welfare laws (and animal welfare theory in general)
are based on ultilitarian principles of balancing the different
interests involved. The interests of animals, who are legally
considered property, without rights, are weighed to their
disadvantage against the interests of humans, whose rights
include the right to own and use animal property.

Francione calls this “legal welfarism,” and devotes
the bulk of Animals, Property, and the Law to documenting
how it works in practice. For instance, Francione argues that
the only interests protected by the research-related provisions of
the federal Animal Welfare Act are the property interests of
researchers. Far from creating any rights for animals, the
AWA does nothing, he maintains, to regulate experiments.
Burning, mutilating, shocking, scalding––no experimental
procedure is forbidden. Moreover, researchers are free to
ignore regulations that purport to offer some minimal protection,
by requiring painkillers, for instance, “when scientifically
necessary,” an exception that Francione says is broad
enough to swallow the rule, particularly since the determination
of necessity is made by researchers. Almost the only application
of the AWA to research pertains to husbandry, such as
providing adequate food and water. This reflects nothing more
than concern that animal property be used efficiently, to produce
reliable scientific data.
Character and morals
Francione finds his most compelling examples in the
web of history, case law, exemptions, and interpretation that
make up state anti-cruelty laws. Almost anything goes, he
argues, as long as there is some benefit to humans and some
reason for it other than pure sadism. In case we think anti-cruelty
statutes were meant to protect animals, Francione reminds
us that they were originally enacted to improve human character
and conserve public morals. Given that nearly any animal
suffering will be considered “necessary” and any practice
“humane” as long as there is a profit in it, these statutes have
little to do with preventing cruelty as “cruelty” is commonly
understood. As Francione points out, anti-cruelty laws have
been rendered useless against almost anything done in research,
blood sports, agriculture, and even entertainment.
Francione’s conclusions won’t surprise anyone passingly
familiar with animal issues. It’s no secret that animals are
legally considered property, and Animals, Property, and the
Law shouldn’t be read as an expose. Rather, Francione provides
a foundation of legal scholarship substantiating the lack
of protection for animals under current law that activists have
recognized all along.
The controversial aspect of the book isn’t what it tells
us about the status quo: it’s what it says we can do about it, or
more precisely, what we can’t do. There is no room in
Francione’s framework for any compromise with welfarist
thinking. Welfare reforms can’t lead to animal rights,
Francione claims, because they always involve a balancing act
rigged against animals. Worse, such reforms won’t end
exploitation; they will just give further credence to the idea
that it is all right to use animals for human ends. In Francione’s
view, welfare reforms aren’t just ineffective in attaining rights;
they are the enemy, striking at the very idea of rights. As such,
he holds, they are morally indefensible.
Having attacked the entire welfare edifice, Francione
ends the book abruptly with a two-sentence discussion of the
only ethical option that he sees left: “An alternative legal status
for animals in which they would no longer be regarded as property
would probably entail dramatic economic and social consequences,
given that our economy is heavily dependent on the
level of animal exploitation protected by legal welfarism.
Therein lies the intractable nature of the present controversy.”
Francione understands that seeking this “alternative
legal status” calls for nothing less than wholesale revolution.
He also understands that as a political matter, this is a dead
end. If he’s right, the implications for activists are devastating.
Left with a choice between the unethical and the impossible,
who won’t decide to just pack their bags and go home?
In fairness, Francione does outline briefly a possible
middle ground––a “pluralistic system that characterizes animals
as property, but recognizes rights-type concepts on some
level.” What he means by “rights-type concepts” are laws that
abolish or prohibit certain types of exploitation, rather than
merely regulating them. The only problem is that this “pluralistic
system” seems awfully close to the welfare reform measures
he considers unethical. And even if it is possible for legal
scholars to distinguish between “rights-type” prohibitions and
welfare regulations, it will be very difficult for the rest of us to
do so. For instance, would a law prohibiting hunting cougars
with dogs be a “rights-type” concept, or a mere regulation of
hunting? What about legislation requiring all animal research
facilities to double the amount of space they give to each animal?
Would that be a prohibition of overcrowding, or just the
kind of peripheral husbandry regulation that Francione rejects
as inconsistent with animal rights? Should we oppose it
because it doesn’t fit neatly into rights theory? What if it could
be shown that the cost of compliance would effectively prohibit
hundreds of painful animal experiments? Unfortunately,
Francione’s distinction between prohibitions and regulations
doesn’t yield any easy answers to these questions.
Rights vs. necessity
The reason his theory gets into these difficulties may
have less to do with what he says about the legal status of animals
than with what he assumes about the rights of humans.
Despite devoting a chapter to discussing various rights theories,
mostly to illustrate how few of them can accommodate the
notion of animal rights, Francione never spells out just what he
thinks human rights are or how they operate. Instead he offers
one hypothetical situation, and one actual case.
The hypothetical asks whether we would agree to sacrifice
ten unwilling human subjects in an experiment that would
lead directly and immediately to a cure for cancer. According
to Francione, in the hundreds of class lectures and public talks
he has given, no one has ever agreed this would be acceptable,
even when it is pointed out that cancer causes enormous suffering
and death to millions.
The actual case, known to all first-year law students,
is Regina vs. Dudley & Stephens. As Francione tells it,
“Dudley and Stephens together with Brooks and Parker, were
shipwrecked in a storm that claimed the lives of the remainder
of the crew. The four young men were afloat in a small boat
that had survived the storm, but the boat had no water and only
two small cans of turnips, and the nearest land was over a thousand
miles away. After having no food for nine days and no
water for seven days, Dudley and Stephens killed Parker without
the latter’s consent. They then drank Parker’s blood and ate
his body. Four days after Parker was killed, a passing ship rescued
the men, and Dudley and Stephens were tried for the murder
of Parker.”
Dudley and Stephens argued that they had to kill
Parker to save their own lives––but were convicted.
Together, these two examples are meant to show that
humans hold at least some interests, such as the interest in not
having pain, injury, or death inflicted on us against our will,
that cannot be overridden, regardless of the benefit to others.
But these examples come up against some hard cases.
In 1928, almost 50 years after Dudley & Stephens, another
case was decided that has also become a staple of first-year law
classes. In Palsgraf vs. Long Island Railway, Mrs. Palsgraf
brought suit against the Long Island Railway for injuries she
suffered while waiting to board a train. The facts of the case
considered by the court were that while Mrs. Palsgraf was waiting
on the platform, a railway employee pushed another passenger
onto a moving train, and in the process negligently
knocked a package from the passenger’s arms. The package
contained fireworks, which exploded, causing scales to fall
and injure Mrs. Palsgraf. After four years of litigation the New
York Court of Appeals ruled against Mrs. Palsgraf, who got
nothing for her injuries.
If as Francione claims, some human interests are
inviolable, most notably the interest in not having pain and
injury inflicted on us against our will, Palsgraf would surely
have been decided the other way. But the court never talked
about Mrs. Palsgraf’s rights, or even what her injuries were.
Instead, it took the opportunity to clarify some general principles
of tort law and ended up with a ruling that effectively
shielded the railways from having to compensate all of their
Perhaps, to follow the legal theories on which
Francione relies, it simply wasn’t economically efficient to
make railways pay for the harm done to Mrs. Palsgraf and others
like her. In any event, Mrs. Palsgraf seems to have fared
no better than animals in her bout with the law.
Nor is P a l s g r a f necessarily the exception. We may
not like to admit it in a public classroom, and as a society we
routinely deny it, but human lives are sacrificed every day for
the benefit of others. The automobile kills and maims thousands
of innocent people each year, many of whom go uncompensated
due to one legal doctrine or another. Yet the automobile
is tolerated, even embraced, simply because so many of us
like the freedom of driving. Toxic chemicals, from paints to
pesticides, are widely used, even though most of us believe
they harm human health, not to mention the environment,
often for no greater benefit than making our houses look prettier
or lowering the price of vegetables a few cents on the pound.
These and myriad other balancing acts are constantly at work,
not to reinforce the rights of the individual, but to subject them
time and again to what is perceived as the greater good.
If animals and people are treated differently under the
law––and they certainly are––perhaps it’s not because of balancing,
or because welfare regulations have edged out “rightstype”
prohibitions, or even because animals are considered
property. It may have to do with something entirely different.
As every lawyer and legal theorist will agree, until
animals can get into a courtroom, they can’t be said to have
legal rights, whatever those rights may be. Even Francione
recognizes that “standing,” as lawyers call it, is the mother of
all legal rights. “Simply put,” he writes, “it makes no sense to
say that someone has a legal right to something if that person
does not possess standing to assert that right.”
Of course, animals would need a guardian to act on
their behalf, just as children do now. But they wouldn’t be the
first nonhumans to be granted legal standing. Corporations,
trusts, cities, ships, and many more have gone before them. If
we are looking to give animals legal rights, the goal––or at
least the first step––seems clear enough. What’s missing is a
legal scholar to show us the way. Someone both inspired and
qualified needs to write a book about how animals might
achieve what even poor Mrs. Palsgraff took for granted: the
right to step inside the courtroom door.
––Pamela Rockwell
[A graduate of Yale Law School, Rockwell is Ethical Studies
Director at the San Francisco SPCA.]

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