Everybody thinks animals should be treated "humanely" and humans shouldn't cause them "unnecessary" pain. So why do animals enjoy so little legal protection?
Building on Tom Regan's _The Case for Animal Rights_ (an excellent book that I reviewed over a year ago), Gary L. Francione argues that it's for a very simple reason: animals are regarded as _property_ under U.S. federal and state law, and "property" has no rights of its own.
Francione says that whenever it comes to a showdown between human wants and animal pain, humans, who _do_ have "rights" under the law, almost always win -- because the game is rigged. Set off the desires of rights-bearing humans against the suffering of rights-less nonhumans whose "welfare" is taken into account for strictly utilitarian reasons, and it's incredibly easy to make a case that such suffering is "necessary".
Francione argues his case well -- including a crucial point: he maintains that there isn't anything in current "property"-based animal law that has the effect of conferring rights on animals anyway. This point is more controversial than some readers may be aware; other writers on this subject (e.g. Gary Varner) have argued that other species _do_ have de facto "rights" under U.S. law and have had them at least since the Endangered Species Act of 1973. If they're right, Francione's argument is in need of serious shoring up if he is to show that the _absence of rights_ is the real problem for nonhuman species.
At any rate he illustrates his main point twice: once in general (using the history of animal cruelty statutes) and once specifically (using the history of animal experimentation and the effects -- or otherwise -- of the Federal Animal Protection Act). I think his arguments are pretty sound, but they're extremely important either way.
One crucial issue here is _standing_. Animals, being "property" rather than rights-bearers, don't have "standing" to bring lawsuits, and generally human beings don't have "standing" to bring suits on animals' behalf. Christopher Stone suggested in a 1972 paper ("Do Trees Have Standing?") that even such natural objects as trees should have standing so that they can be represented in court by human organizations that want to protect them. But so far there hasn't been a majority on the U.S. Supreme Court that has agreed (and in fact Stone himself has since backed off from his suggestion).
Francione does a nice job on this issue. For my money, this reform is the _single_ most important one on the animal-law list; it alone would revolutionize the movement toward humane treatment of animals (and trees, for that matter).
Now, there are several nits to be picked in the philosophical foundations on which Francione builds. This isn't really the place to pick them since Francione is explicitly refraining from mounting a full philosophical case for these foundations. But I'll mention three of them because they also affect the success of Regan's arguments.
(1) Francione argues that utilitarian, "welfarist" ethics can't protect animal welfare because that welfare can always be overruled by consequentialist considerations. But his own case (and Regan's) takes the view that rights are themselves only _prima facie_ moral claims, and therefore still subject to overruling. It is unclear where Francione (and Regan) would draw the line about having them overruled, but it does seem as though many (most? all?) of those "consequentialist" considerations coud be rephrased, brought in the back door as deontological considerations, and weighed against animal rights all over again under the new ethical regime. (And besides, both Francione and Regan admit that rights may be overruled by _some_ consequentialist considerations.) So it's not clear that rights really _would_ provide a greater degree of protection to animal welfare -- especially since, as Francione's own examples show, part of the problem is just that even the _current_ regulations against harm to animals aren't strictly enforced. Is the problem utilitarianism in general and in principle, or just that the current version of legal-welfarist utilitarianism doesn't take adequate account of animal interests?
(2) Francione (following Regan) bases the possession of rights on intrinsic worth. But it isn't just obvious, and neither one of them actually _argues_, that nonhuman animals have the _same_ intrinsic worth as human beings. Nor, for that matter, is it obvious that intrinsic worth really _is_ a sufficient ground for rights; surely there might be creatures whose existence was intrinsically worthwhile but whose survival requirements conflicted so far with our own that they couldn't be said to have any "rights" with respect to human beings. And in that case, it's not clear why, or even whether, the intrinsic worth of other species gives rise to moral claims that are binding specifically on _us_.
(3) Isn't it also possible that animal welfare lives in a sort of moral "no-man's land" in which there really _aren't_ any moral claims sufficiently well-defined to be called "rights"? Maybe, e.g., animals don't have a full moral claim against us not to mistreat them, but human beings who mistreat animals also don't have a moral claim against other humans not to interfere forcibly with such mistreatment. If something like this is even conceivable, it's not clear that consequentialism and deontologism really exhaust the alternatives.
Ah, well -- if one book could answer all our questions, it would be a very different world. At any rate Francione's book is a most worthy successor to Tom Regan's groundbreaking philosophical work and it deserves to be read by anyone interested in the humane treatment of nonhuman animals. Heck, if the opening description of the annual "pigeon shoot" in Hegins PA doesn't cause a wrenching in your gut (no matter what you think of "animal rights"), then you and I don't inhabit the same moral universe.
