BOOKS: Animal Rights: Current Debates & New Directions

From ANIMAL PEOPLE, October 2004:

Animal Rights: Current Debates & New Directions
edited by Cass R. Sunstein & Martha C. Nussbaum
Oxford University Press, Inc.
(198 Madison Avenue, New York, NY 10016), 2004.
Hard cover, 338 pages, $29.95.

Readers familiar with Charles Dickens’ Hard Times will
recognize in the rhetoric of opposition to animal rights many of the
same arguments used by Victorian capitalists in opposition to public
education, care for the destitute, and female emancipation.
Dickens published Hard Times, his 10th, shortest, and most
prescient novel, in 1854. In it he expressed his disillusionment
that decades of social reforming had chiefly enabled the privileged
classes to co-opt the rhetoric of change.
Charitable institutions created in response to the misery,
poverty, cruelty and ignorance that Dickens spent much of his life
exposing often appeared to be doing more to perpetuate social ills
than to eliminate them.
The attitudes that created bleak and harsh conditions had to
change, Dickens pointed out, before even the best-intentioned
reformers could actually reform anything.

The animal rights movement may now be at a comparable point.
Society, at least in the developed world, seems to have edged
toward conceding that change is needed, without having developed
much agreement about what to change, or how to change it.
Steven Wise, author of Rattling the Cage: Toward Legal
Rights for Animals, opens Animal Rights: Current Debates & New
Directions by noting that during the struggle to abolish slavery many
people who were sympathetic toward the plight of slaves nonetheless
feared the chaos that might follow if slavery was ended abruptly.
Similar fears now influence many people who are sympathetic toward
animals but wish to continue eating meat and benefiting from
animal-based research.
Wise believes that legal rights for animals will be achieved
one step at a time, by recognizing the most basic rights first. He
recommends that regulators should use the “precautionary principle”
in prohibiting apparent cruelty, whether or not precise scientific
proof of suffering is available.
Federal circuit judge Richard Posner rebuts Wise, and also
Animal Liberation author Peter Singer, by rhetorically asking why
advanced cognitive computers should not be given rights. Describing
the vocabulary of animal rights as unnecessary, provocative and an
impediment to clear thought, Posner argues that facts and more facts
are needed.
“Now what I want is facts, facts alone are wanted in life,”
asserted the Hard Times capitalist do-gooder Thomas Gradgrind. “You
can only form the minds of reasoning animals on facts. Nothing else
will ever be of any service to them. Stick to facts, sir.”
Posner asserts that “ethical argument is, and should be,
powerless against tenacious moral instincts.”
Singer responds that ethical arguments ended slavery in Britain much
earlier than it was abolished by revolution in France and civil war
in the U.S.
University of Virginia philosophy professor Cora Diamond
mentions Hard Times and Gradgrind in responding to Singer, but seems
to side mainly with Posner.

Balancing interests

Although most people say they believe that animals should not
be treated cruelly, in fact billions of animals suffer dreadfully
and continuously at human hands.
Rutgers University law professor Gary Francione believes this
echoes the failure of 18th and 19th century efforts to protect slaves
from ill treatment without freeing them from property status. He
contends that equal consideration of animal and human interests can
never come about in court until laws stop treating animals as
University of Chicago law professor Richard A. Epstein
believes that animals should continue to be treated as property and
finds much to approve of in the status quo.
“We should resist any effort to extrapolate legal rights for
animals from” the anti-slavery and women’s emancipation struggles,”
Epstein contends, “because there is no next logical step to restore
parity between animals on the one hand and women on the other. What
animal can be given the right to contract, to testify in court, to
vote, to participate in political deliberation, to worship?”
This approach confuses parity of treatment with parity of
consideration. As Dickens pointed out in Hard Times, railing
against cruel working conditions did not mean that social reformers
wanted every worker “to be given turtle soup with venison and a gold
spoon,” in Gradgrind’s words.
Contrary to one of Epstein’s most extreme extrapolations, an
animal rights advocate who attacks factory farming does not thereby
propose that chimps in the wild should be given Medicare. It would
be enough if wild chimps were not killed for bush meat.
Epstein sees altruism toward animals as an indulgence of the
rich and secure. The only pro-animal measures he supports, he says,
benefit animals and humans alike.


The late James Rachels, author of Created From Animals: the
Moral Implications of Darwinism, rejects tests of moral status,
favored by Wise in particular, which depend upon whether the
subjects possess general characteristics such as sentience and
Rachels argues that moral standing can only exist relative to
treatment. For example, Rachels believes that any sentient being
ought not to be treated with physical cruelty, but that only a
self-conscious being has a moral interest in not being humiliated.
Thus there is no clear and concise answer to the question of
how a moral person should treat animals, except that the moral
person should always treat animals with consideration for their needs
and preferences.
Rachels does not attempt to translate this general principle
into a practical basis for law, which to be enforceable must clearly
and concisely define what is prohibited.
Lesley J. Rogers and Gisela Kaplan, professors at the Center
for Neuroscience and Animal Behaviour at the University of New
England, suggest that biologists are no better equipped than animal
rights advocates to decide where lines should be drawn: science has
not yet determined to what extent other species are self-aware,
possess complex memory, can plan their actions, engage in complex
communication, and think.
New York City attorneys David J. Wolfson and Mariann Sullivan explain
how little protection animals currently get from U.S. law. As
Wolfson and Sullivan put it, “(Agribusiness) has performed an
extraordinary sleight of hand: it has made farmed animals disappear
from the law.”
The standard defense against a criminal charge of cruelty in any U.S.
case involving agriculture is to establish that the alleged crime is
an aspect of routine husbandry. Thus an individual who keeps a hen
in a shoebox all her life before breaking her legs, hanging her
upside down, and cutting her head off might be convicted of cruelty.
A corporation that does the same thing to several million battery
hens per year is exempt from prosecution.
In Europe, where agribusiness has less clout, some nations
have extended a variety of legal protections to farm animals, and
the European Union has followed, several steps and many years
behind, allowing for gradual transitions from present practice.

Adapting the law

Michigan State University law professor David Favre points
out that laws as historically structured distinguish sharply between
property and persons, to the detriment of animals, who are neither
human nor inanimate. Favre suggests that a third category of legal
status could be constructed, which he calls equitable self
ownership. Favre would borrow from the English law of equity, as
developed in the Chancery courts, to split ownership into “legal
ownership,” which would always vest in the human owner, and
“equitable ownership,” which would vest in the animal by deed or by
The effect of this would be similar to creating a trust, in
which a human becomes the guardian of the animal. In such a case the
animal would be treated as a person in some respects. This would
enable a guardian ad litem, such as a humane society authorized to
pursue a case on an animal’s behalf, to sue for damages, if injured
by some person. The self-owned animal could also have a bank account
in which it would have a life interest.
Favre’s suggestion seems applicable to satisfy the needs of
companion animals. It is more difficult to imagine how it might be
applied to satisfy the needs of livestock and poultry, or how the
premise might be enacted into law against agribusiness opposition.

Feminist view

University of Michigan law professor Catherine A. MacKinnon
compares animal/human legal relations with those of men and women.
MacKinnon argues that women have not been helped as much as is
commonly supposed by doctrines of equal treatment, which disregard
actual gender differences in needs, interests, and obligations.
Likewise, MacKinnon believes that animals may not be
well-served by claims based on commonalities with humans, instead of
on their own unique characteristics.
If qualified entrance into humanity on male terms has done
little for women, MacKinnon asks, how much will being seen as
human-like really do for animals?
MacKinnon anticipates the possibility of preferential
treatment eventually being extended to our fellow higher primates,
to the continuing detriment of species less like us but still fully
capable of suffering.
“Although animals have rights,” comments University of
Michigan professor of philosophy and women’s studies Elizabeth
Anderson, “we must examine the plurality of values, the
inadequacies of simplistic moral formulae, the dependence of rights
upon natural and social contexts, and the consequences of enforcing
those rights, before we can figure out what they are.”
Co-editor Cass R. Sunstein asserts that “it would not be a
gross exaggeration to say that federal and state laws now guarantee a
robust set of animal rights.”
But Sunstein admits that these laws are poorly enforced. He
agrees with Favre that humans should be allowed to sue on behalf of
animals who have been cruelly treated.
The other Animal Rights co-editor, Martha C. Nussbaum,
observes that “one of the most central entitlements of animals is the
entitlement of a healthy life. Where animals are directly under
human control, it is relatively clear what policies this entails:
laws banning cruel treatment and neglect; laws banning the
confinement and ill treatment of animals in the meat and fur
industries; laws forbidding harsh treatment for working and circus
animals; and laws mandating adequate space in zoos and aquariums.
The striking asymmetry in current practice,” Nussbaum writes, “is
that animals raised for food are not protected in the way other
animals are protected.”
–Chris Mercer & Beverley Pervan

[Mercer and Pervan are co-directors of the Kalahari Raptor
Center, in Kathu, Northern Cape, South Africa. Mercer described
himself in an April 2003 letter to ANIMAL PEOPLE as “a retired
Zimbabwe advocate (barrister, trial lawyer) with qualifications and
many years of practical experience in England, Botswana and

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