A prominent and respected philosopher of animal rights law and ethical theory, Gary L. Francione is known for his criticism of animal welfare laws and regulations, his abolitionist theory of animal rights, and his promotion of veganism and nonviolence as the baseline principles of the abolitionist movement. In this collection, Francione advances the most radical theory of animal rights to date. Unlike Peter Singer, Francione maintains that we cannot morally justify using animals under any circumstances, and unlike Tom Regan, Francione's theory applies to all sentient beings, not only to those who have more sophisticated cognitive abilities.
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Gary L. Francione was the first academic to teach animal rights theory in an American law school and has lectured on the topic throughout the United States, Canada, and Europe. He is Distinguished Professor of Law and Nicholas deB. Katzenbach Scholar of Law and Philosophy at Rutgers University-Newark, and his books include Introduction to Animal Rights and Animals, Property, and the Law.Excerpt. © Reprinted by permission. All rights reserved.:
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EXCERPT FROM THE INTRODUCTION
Animals as Things: Neither Use Nor Treatment Raises a Moral Issue
Until the nineteenth century, the Western view was, with few exceptions, that nonhumans were completely outside the moral and legal community, and that neither our use nor our treatment of them raised any moral or legal concern. We could use them for whatever purpose we wanted, and we could inﬂict pain and suffering on them pursuant to those uses without violating any obligations that we owed to them. That is, nonhumans were regarded as things that were indistinguishable from inanimate objects and toward which we thus could have no moral or legal obligations. Although we might have a legal obligation that concerned animals—such as an obligation not to injure our neighbor’s cow—this was an obligation that we owed to our neighbor not to damage her property but not an obligation that we owed to the cow. To the limited extent that the cruel treatment of animals was thought to raise a moral issue, it was only because of a concern that humans who abused animals were more likely to ill treat other humans. Again, the obligation concerned animals but was owed to other humans and did not recognize that nonhuman animals had any moral signiﬁcance.
Various reasons were offered to justify the status of animals as things. Some people, such as René Descartes (1596–1650), apparently believed that animals were, as a factual matter, indistinguishable from inanimate objects in that animals were not sentient —they were simply not beings who were conscious, had subjective and perceptual awareness, or were able to experience pain and suffering. As a result, they were not beings who had interests; that is, they did not have preferences, wants, or desires. According to Descartes, animals were “machines” that God created and therefore were no more conscious than the machines that humans created. If Descartes were correct and nonhumans are not sentient and have no interests, then it would not, of course, make sense to talk about having moral or legal obligations to animals concerning our use or treatment of them any more than it would to talk about our obligations to alarm clocks.
Some scholars dispute whether Descartes really believed that animals were not sentient, but if he did, he would have been unusual. At that time, most people did not doubt that animals were sentient and had interests. Rather, they maintained that humans were morally justiﬁ ed in ignoring animal interests and treating animals as if they were inanimate objects because animals were inferior to humans. This inferiority had two forms.
The ﬁrst is what we might regard as “spiritual” inferiority. Western civilization has long entertained the notion that humans (or at least some of them) are created in the image of God and have greater value—with some people referring to souls—that justiﬁes excluding animals from the moral community altogether. The creation story in the book of Genesis talks about God giving “dominion” to humans, a notion interpreted to mean that God authorized the domination of nonhumans by humans. Indeed, the English philosopher John Locke (1632–1704), who was central to the development of the modern theory of private property, based the exclusive ownership of property on the supposedly absolute control that God gave us over animals, as described in Genesis.
The second form of inferiority is what we might consider “natural” inferiority, based on the purported lack in nonhumans of some special mental characteristic regarded as uniquely human. According to this view, although animals are similar to us in that they are sentient or consciously aware, their minds are otherwise different from ours. That is, they lack cognitive characteristics possessed by all or most humans, such as rationality, abstract thought, language ability, reﬂective self-awareness, or the ability to engage in reciprocal moral relations. This qualitative difference between humans and animals, it was claimed, allowed us to ignore animal interests and to treat animals as things. For example, the German philosopher Immanuel Kant (1724–1804) recognized that animals were sentient and could suffer but denied that we had any direct moral obligations to animals because they were neither rational nor self-aware. Kant maintained that our treatment of animals was morally relevant only to the extent that it made us more likely to treat other humans in the same callous way.
A hybrid version of this doctrine regarded animals as things combining natural and spiritual inferiority. For example, St. Thomas Aquinas (ca. 1225–1274) linked rationality with having a soul and saw nonhumans both as naturally and spiritually inferior. Although Locke believed that God had given animals to humans for the latter to use, he also maintained that animals were not capable of abstract thought. Indeed, it is accurate to say that during this period, many people linked natural and spiritual inferiority and maintained that animals lacked some supposed uniquely human characteristic, such as rationality or the ability to think abstractly, because they, unlike humans, were not made in the image of God.
Therefore, in this ﬁrst phase, which continued through the beginning of the nineteenth century, we viewed both the use and the treatment of animals as not presenting any sort of moral or legal issue. Animals were considered indistinguishable from machines and not sentient or, alternatively, sentient but spiritually or naturally inferior to humans. In any case, humans could use nonhumans for whatever purpose they wanted and treat them as they wanted pursuant to those uses, as long as they did not damage the property of others or engage in conduct toward animals that might make them likely to act in a similarly unkind manner toward other humans. Humans may have had obligations that concerned nonhumans, but they did not have any obligations that they owed to them.
Animal Welfare: We Can Use Animals but Must Treat Them "Humanely"
In the nineteenth century, as part of the progressive movements in favor of women’s rights and in opposition to human slavery, our thinking shifted to the animal welfare position, which purported to reject the notion that animals were merely things of no moral or legal consequence. Not everyone rejected the Cartesian view that animals were not sentient or the notion that nonhumans, even if sentient, were completely outside the moral community because of some natural or spiritual inferiority. Rather, these notions continued to inform thinking about our obligations to nonhumans, but the view that animals were at least partial members of the moral community emerged, enjoyed widespread social acceptance, found its way into the law, and remains the prevailing contemporary view.
The animal welfare position maintains, for the most part, that we may use animals for our purposes because they are our spiritual or natural inferiors but that there are limitations on our treatment of them. That is, animals are able to suffer whether or not they have souls or some human-like cognitive characteristic. Therefore, we may use animals because they are different from us, but we nonetheless are obligated to treat them “humanely” and not to cause them “unnecessary” suffering. We must use animals “gently.” Moreover, this is a moral obligation that we owe directly to the animals and is not one that merely concerns animals but is really owed to other humans.
Among people who were inﬂuential in the development of the animal welfare position was the British lawyer and philosopher Jeremy Bentham (1748–1832), who maintained that animals had been “degraded into the class of things,” with the result that humans “torment” them in various ways. Bentham made clear that nonhumans shared to some degree the characteristics regarded as unique to humans and that in any event, the absence of these characteristics did not grant people a license to treat animals in any way that they wished:
"A full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month, old. But suppose the case were otherwise, what would it avail? the question is not, Can they reason? nor, Can they talk? but, Can they suffer?"
As long as an animal is sentient, the animal’s interests and particularly interests in not suffering, must be given appropriate consideration.
Although Bentham suggested that some animals might be more rational than some humans, he certainly did not reject the position that human minds were qualitatively different from animal minds. On the contrary, Bentham believed that such differences existed and he maintained that although these differences did not permit us to “torment” animals, they did allow us to use animals as long as we took care to minimize their suffering.
Bentham discussed this in the context of why it was morally permissible to eat animals. He certainly was aware that we did not have to eat animals to survive but thought that it was morally permissible for us to eat them because they were not self-aware and had no sense of the future. Animals do not have an interest in not being killed and eaten; that is, animals do not care about whether we use them but only how we use them. According to Bentham,
"[i]f the being eaten were all, there is very good reason why we should be suffered to eat such of them as we like to eat: we are the better for it, and they are never the worse. They have none of those long-protracted anticipations of future misery which we have."
He maintained th...
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