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Introduction to Animal Rights

Joseph Lubinski


Animal Legal and Historical Center
Publish Date:
2002
Place of Publication: Michigan State University College of Law
Printable Version

Introduction to Animal Rights

Introduction

Social movements are like novels – each comes with a beginning, followed by a succession of chapters that unfold the story until, ultimately, one reaches the conclusion.  The novel here is animal rights, a tale about the advancement of other species in a human-dominated world.  Stepping from the shadows of other, better known causes such as the civil rights movement and blossoming from the awareness occasioned by the environmental movement, animal rights is, for the first time, becoming a serious issue for debate.  Not long ago, animal rights activists were dismissed as fringe, covered in the press only for their more outlandish activities. [FN 1]   More recently, however, animal issues have taken a more prominent place in the national media.  Suddenly, stories about animals – both good and bad, heroic and tragic [FN 2] – take a more prominent place in the evening broadcast.  Major newspapers discuss the newest animal rights books [FN 3] and profile those whose legal careers center on animal advocacy. [FN 4]  But moving so quickly is like reading the last few chapters of the book. To understand the animal rights movement and where it is going, one must begin with the first chapter.  

Unless one is reading the Bible, most stories do not begin at the beginning.  Rather, they begin just as things are about to get interesting.  So it is with animal rights.  While animal protectionism dates back hundreds of years [FN 5] and animal rights literature extends back to the heart of the Civil Rights Era, [FN 6] to American culture the animal rights movement was born in 1975 with the publication of Peter Singer’s still-controversial Animal Liberation. [FN 7]  In the book, Singer introduces the reader to issues that remain at the forefront of animal protectionism today – laboratory experimentation, factory farming, and vegetarianism.  In each chapter, the author details the horrors endured by animals at society’s cold and at times oblivious hand.   Singer accuses American society of speciesism – “a prejudice or attitude of bias in favor of the interests of members of one’s own species and against those of members of another species.” [FN 8]  In its place, humans should give equal consideration to the interests of animals when making any decision that affects the well-being of other species.  Thus, in Singer’s world, all interests are the same and no one should be given preferential treatment. 

The irony of associating the birth of animal rights with Peter Singer is that he is a utilitarian.  As such, no one – be it man, beast, or shrub – possesses rights. [FN 9]  Thus, animals are not entitled to any fundamental, inviolable privileges and protections.  But then, neither are humans.  Rather, all actions should be judged based on a cost-benefit analysis.  As applied by Singer, the benefits to humans that flow from the domination and perceived mistreatment of animals does not, as a practical matter, overcome the costs to other species.  Animal rights advocates come to the same conclusion, but based instead on the notion that there are certain rights so fundamental that they extend to other species and must be respected by human civilization.

Context

Every story needs characters.  There are many potential characters in a discussion over the merits of animal rights.  One could pick any one of the millions of  dogs euthanized each year in American animal shelters.  Or one might turn to the diabetic whose length and quality of life has been extended thanks to animal research.  Finally, one could focus on the people at the heart of the debate – the rights activists, the industry opponents, farmers, consumers, or even the family sitting around the dinner table.  Each provides an interesting and compelling perspective. 

For these purposes, however, other candidates better inform an introduction to the issues.  Consider first animals that exhibit human characteristics, or how people attribute animal characteristics to some animals.  For example, Alex is a parrot in Massachusetts that can speak.  Unlike the pet store parrot, however, Alex does more than mimic sounds.  He recognizes and can identify colors.  He can count.  Researchers at MIT are debating whether he can communicate.  It is there that he lives in his cage, along with several other birds, subject to the close scrutiny and tests of scientists trying to ascertain the limits of his linguistic capabilities. [FN 10] 

Renowned scholar Martha Nussbaum begins her critique of Professor Wise’s previous book with Flo’s story.

Flo, a female chimpanzee, died of old age by the side of a stream. Flint, her son, stayed by her corpse, grabbing one of her arms and trying to pull her up by the hand. He slept near her body all night, and in the morning he showed signs of depression. In the days following, no matter where he wandered off, he always returned to his mother's body, trying to remove the maggots from it. Eventually, attacked by the maggots himself, he stopped coming back, but he stayed fifty yards away and would not move. In ten days he lost about a third of his body weight. Finally, after his mother's corpse had been removed for burial, Flint sat down on a rock near where she had lain down, and died. The post mortem failed to show the cause of death. Primatologist Jane Goodall concludes that the major cause of death had to be grief: "His whole world had revolved around Flo, and with her gone life was hollow and meaningless." [FN 11]

Next, consider the new ways in which society finds to utilize animals for their benefit.  In South Dakota there is a cow named Yoon.  She looks and probably acts line any other bovine, but she is not.  Unlike other livestock, her “purpose” is not to provide meat or milk to society.  Yoon, like an ever-increasing number of animals, was genetically engineered by human scientists.  Unlike some clones, designed for the novelty of science or for food production, Yoon and her siblings were created to save lives.  Each produce human antibodies, antibodies the cows’ creators hope will someday do everything from treat ear infections to guard against bioterror weapons like anthrax and smallpox. [FN 12]

Such miracles might become a reality by infecting the animals with various bacteria and viruses.  The antibodies’ response could be used to treat and prevent illness in the same way we now use gamma globulin to combat hepatitis.  Other animals are similarly being used.  Research is underway, for instance into producing pigs whose hearts could be used for human transplants and who might better produce human insulin for diabetics.

Finally, consider Dee Lucky Lucas.  Luke is a ten-year old yellow lab.  Over his lifetime he has had multiple surgeries and is on several medications to treat everything from arthiritis to a thyroid condition.  The people he lives with consider him part of the family, though they are, at the end of the day, his owners.  Indeed, before each surgery, mom and dad had to decide whether to perform the surgery.  They had to decide whether to medicate him.  One day, probably in the near future, they will have to decide to euthanize him.  Society would generally not condone making such choices in the context of other people.

Though there is no one else like Luke, his story is not much different than that of many pets.  Not long ago, trips to the vetereninarian were for two purposes – diagnosis and treatment of simple ailments and that final, tragic trip.  Today, however, many pet owners view their animals differently.  An increasing number of pet owners are taking out health insurance on their canine and feline companions.  Veterinary specialists perform surgeries that only a few years ago were reserved only for human patients.

As you read the following, keep in mind how the interests of these creatures is affected both by the current status of the law as well as by any proposed change in the law. 

Some Initial Concepts

Rights and Interests

Every story is set with certain background facts in place.  In this narrative, the background is made up of legal principles and concepts that serve as the foundation for many of the issues important to the animal rights debate.  The best place to start looking at such background is with perhaps the most fundamental element of this discussion – the definition of a right.  For some reason, the notion of human rights does not cause as much confusion as the concept of animal rights to most people.  When one talks about human rights violations in a foreign country, or conversely of guaranteeing certain basic human rights for all people, there is little debate about what the term “right” means in such a context.  Not so, however, when one broaches the topic of animal rights. 

What, then, is a right?  Like so many things in life, there is no single, workable definition.  Put most succinctly, but consequently also most superficially, a right is “that to which one is morally or legally entitled.” [FN 13]  Then, a right is an entitlement.  One might look for the answer in natural law, which is the source of “right” as embodied in the Declaration of Independence. [FN 14]  From this perspective, a right is “the idea that human beings have by nature . . . certain rights that governments cannot legitimately violate, and that political law must respect.” [FN 15]  A right, then, is something one is born with.  One could also take a more functionalist perspective, viewing rights as those principles that protect individuals from the rest of society. [FN 16]  To conceptualize, rights are thus like fences, keeping the world out of certain areas of the individual’s life.  [FN 17]  Trying to mesh these different conceptions, rights might be less a concept than a tangible entitlement some creatures are born with.  They serve to protect individuals, in some cases at all costs, from the needs, wants, and prurient interests of the rest of society.

To this point, however, society recognizes rights for only one species – humans.  Therefore, in seeking to expand society’s conception of rights, the nuances of one’s definition matter at least to members of the animal advocacy community. [FN 18]  These, however, might be best thought of as characterizations of philosophical rights.   

In practice, it is often the case that such rights are different than legally enforceable rights.  Legal rights are those enforceable in a court and recognized under the law.  It means little to say that a one has a right to do something if there is no external recognition and protection of that assertion.  Some come from statutes, others from a constitution (state or federal), and still more from the common law made by judges.  Most are express and easy to identify, at least in principle, while others remain shrouded in the penumbras of other recognized rights waiting to be discovered. 

Closely related to the concept of legal rights, and equally nebulous, a legal interest is “any interest that the legal proceeding has the authority to address.” [FN 19] Legal interests may better be understood in the negative – a deprivation of a legal interest equates to a cognizable injury capable of being remedied by the law. [FN 20]  While closely related to and important to the issue, the Supreme Court has emphasized that the determination of legal interests is separate from a question of standing. [FN 21]

Legal Personhood and Standing

The law is full of classifications, one of the most important of which is the distinction between persons and nonpersons.  While there is no rule that prevents nonpersons from holding legal rights and protections, only legal persons have the capacity to enforce and safeguard those entitlements.  In reality, personhood is nothing more than a legal fiction, a term attached to certain entities that allow them to assert their rights and privileges.  To the nonlawyer, it is probably no surprise that today all people are persons.  It might be more surprising to learn that this was not always the case [FN 22]or that entities like corporations and the government are legal persons. [FN 23]  Animals, however, are not persons and thus, unlike in the wild, cannot fend for themselves to protect their interests.  Moreover, this fact also limits the benefits animals can receive.

To be able to sue, a potential litigant must have standing.  Standing might be thought of as the confluence of a legal person, a legal right, and a legal interest seeking to redress a legal wrong.  Because animals are not persons, they cannot sue.  Moreover, the standing requirements articulated by the Supreme Court make it difficult for activists to sue on behalf of animal interests because rarely can they assert a sufficient legal injury to their legal interests.  As articulated in Lujan v. Defenders of Wildlife, to have standing a plaintiff must:

            1. have suffered an injury of fact,

            2. caused by the defendant,

            3. and that can be remedied by the judicial forum. [FN 24]

This injury “must invade a legally protected interest which is a) concrete and particularized and b) actual or imminent, not conjectural or hypothetical.” [FN 25]  Animal advocates often have trouble meeting this injury in fact test for many animals, especially those used in research.  Indeed, while court have been willing to recognize an aesthetic injury [FN 26] they have at the same time refused to read into statutes private causes of action. [FN 27]

Role of Economics

Money as they say, talks.  Animals are, for lack of a better description, big business in America and elsewhere.  A look around the average house demonstrates the important role that animals play in the economy. Household use of animal products extends far beyond leather shoes and the food in the refrigerator, however.  As Professor Wise points out:

the blood of a slaughtered cow is used to manufacture plywood adhesives, fertilizer, fire extinguisher foam, and dyes.  Her fat helps make plastic, tires, crayons, cosmetics, lubricants, soaps, detergents, cough syrup, contraceptive jellies and creams, ink, shaving cream, fabric softeners, synthetic rubber, jet engine lubricants, textiles, corrosion inhibitors, and metal-machining lubricants.  Her collagen is found in pie crusts, yogurts, matches, bank notes, paper, and cardboard glue; her intestines are used in strings for musical instruments and racquets; her bones in charcoal ash for refining sugar, in ceramics, and cleaning and polishing compounds. [FN 28]

The family pet is likely a product of the dog breeding industry. Factory farming techniques helped put meat, cheese, and eggs on the table at a reasonable price.  Dog racing, horse racing, and hunting provide both entertainment and income to millions across the country.  The list is nearly infinite, but the point is that the current status and treatment of animals is deeply interwoven into the American capitalist system. It must therefore be considered what effect a change to the legal status of animals would have on the national labor market and cost of goods.  Any change to the law that significantly alters the relationship between humanity and this lucrative property line would have deep repercussions within the economy.  Changes to the legal status of animals, therefore, might cause real harm to human interests in the form of lost

 Present State of the Law

Property

To the law, animals are property – goods to be bought and sold, acquired and maintained.  This principle is deeply interwoven into the law.  Indeed, some of the first cases read by law students in Property class are Pierson v. Post [FN 29] and Keeble v. Hickeringill [FN 30]; each of which is about the acquisition, ownership and control of wild property – namely foxes and ducks.  Treating animals as property is not strictly a matter of law, however, as it is also deeply entrenched in Western religion.  The Old Testament, for instance, decrees that animals are goods over which humanity has dominion. [FN 31]  Philosophers, too, have considered the property status of animals. John Locke, for example, wrestled with the proprietary nature of humanity’s interactions with animals.  To him, animals are something common to the world – like the air. [FN 32]  How could something of that nature be legally possessed by any one individual?  On the other hand, animals have the potential and perhaps purpose of serving humanity.  Towards that end, animals can best benefit individuals within society by giving people the ability to possess such creatures, to be able to control others’ access to certain animals. [FN 33] 

Thus, to the law, religion, and philosophy, animals are chattels whose destiny is rightly directed by humans.  As property, they have no interests independent of those assigned by humanity.  And yet, animals are not just like any other household property. [FN 34]

State Enforced Rights – Animal Cruelty

Unlike the household toaster, the law regulates how people treat their animals.  Anti-cruelty laws prevent inhumane treatment to animals, subjecting violators to criminal sanction for causing unjustified harm to other creatures.  Penalties range from misdemeanor fines in some locations to a recent trend towards making such conduct a felony.  Thus, much like criminal statutes designed to protect humans, the state has the power to penalize those who hurt animals.  This sets animals apart, giving them special status within the property regime.  They are entitled to certain minimum guarantees, namely that they will not be made to suffer unnecessarily. 

It is important to recognize at the same time, however, that such anti-cruelty regulations do not necessarily have animal interests at heart.  Quite apart from any benefit the animal might receive from being free from cruel treatment, such laws help to protect human investment in property.  Moreover, many who support such laws are truly concerned not with the actual harm to the animal, but with what such treatment indicates about the abuser – namely a propensity to violence that might ultimately lead to violence against humans.  Given these concerns that exist independent of animal interests, it is not surprising that such laws are often vaguely written, what after all is cruel and what is unnecessary, and often under-enforced. [FN 35]

Damages to Animals

Unlike harm caused to humans, however, there is rarely a private cause of action to redress injuries inflicted upon animals.  Surely, an animal owner can recover for the lost value of the animal, but in the case of a dog or cat such sums are usually insufficient to justify filing suit.  No court under the current legal regime would award an animal damages for injury to its being.  Moreover, most courts deny animal owners the ability to sue for the damages they incur to their person, in the form of emotional damage, when their animals are injured or killed. [FN 36] 

Where Advocates Want to Go

The gains sought by the animal rights movement might be thought of as this story’s plot.  By definition, an activist seeks change.  Animal advocates are no different, seeking a new understanding of animals’ place within human society and law.  That said, such change is not easy to attain, especially when animal advocates do not always agree on the ends that they seek.

Rights versus Welfare

Even within the animal protection movement there is disagreement about the goals that should be sought on behalf of other species.  Roughly, there are three competing philosophies: traditional welfare theory, animal rights, and “new welfarism.”  While each seeks to advance the protections afforded animals under the law, they differ in approach and the ends sought to be attained. 

Briefly, one might understand welfare and rights to lie at opposite ends of the protectionist spectrum.  Animal welfare advocates support the types of reforms long sought on behalf of animals – increased penalties for unjustifiable harsh treatment, in other words.  Welfarists accept the legal status of other species as property, even condoning such a classification.  Moreover, they acknowledge that animals always will be, and perhaps to some extent should be, used as resources for humanity.  The limit, however, is that animals should not suffer unnecessarily at the hands of people. [FN 37]   In short, then, welfare advocates seek a benevolent dominion over animals that expressly reaffirms humanity’s superiority to other species.

Many of the contemporary gains made on behalf of animals are welfare-based in nature.  For instance, at the federal level, statutes such as the Animal Welfare Act [FN 38] and the Humane Slaughter Method Act [FN 39] seek to ensure that animals used in industry are treated appropriately.  State anti-cruelty laws aim to proscribe the mistreatment of animals by private citizens, in other words setting the bounds for the treatment of dogs, cats, birds, and the like. [FN 40] 

Take note that the goal is to regulate unnecessary pain and suffering, not all suffering.  This means that it is all right to eat animals, to use them for some experimentation, to domesticate them, and in some circumstances to kill them.  Moreover, the effectiveness of welfarism in protecting animals depends on how broadly or narrowly a society chooses to define “unnecessary” in various circumstances. [FN 41]  Thus, welfarists seek no fundamental change in the legal order, only increased protections within the current regime. 

On the other end of the protectionist spectrum lie animal rights advocates.  Rights advocates seek to first change the fundamental legal status of animals away from mere property towards something closer to personhood.  Such a change would open the door to more expansive reforms down the line.  At base, rights advocates believe that all animals, human and otherwise, possess some inalienable rights that deserve recognition and protection.  To the law, these might be characterized as fundamental rights that must never be abridged except in the most dire of circumstances.  The number and scope of such rights do not come in one size, but rather are unique based on the intellect and capabilities of each species. [FN 42]  Therefore, rights advocates do not seek to equate human rights with those of animals, but rather recognition that some animal rights do exist. [FN 43]  

Thus, rights advocates do not accept the property status of animals nor the wisdom of subjecting them to human domination.  Animal experimentation in laboratories, even if helpful to humans, is unjustified.  Factory farming, and perhaps the meat industry itself, is immoral.  Indeed, one must be careful not to eat produce sprayed with pesticides that cost insects their lives. [FN 44]  Even the concept of pet ownership is suspect under the rights framework. [FN 45]  Acceptance of this rights position requires a rejection of American law as it currently stands. [FN 46] 

Such seemingly radical reforms make rights advances hard to come by.  As such, those dissatisfied by both extremes may look for an alternative approach.  Lying between the rights and welfare points on the spectrum exists what Professor Francione calls “new welfarism.” [FN 47]  At its most fundamental level, new welfarism represents a sort of compromise between rights and welfare whereby animal advocates accept traditional welfare gains in the hope that they will eventually amount to a recognition of animal rights. The new welfarist is identified by several characteristics. First, she rejects the notion that animals are merely tools for humanity. [FN 48]  Second, is a rejection of the traditional animal rights framework as too radical to effect real change. [FN 49]  Third, the strategies they instead employ tend to mimic those of traditional welfare-based groups. [FN 50]   To rights activists, the effect of such an approach is to substantially reinforce the human dominance over animals they claim to reject. [FN 51]  In so doing, they perceive no “moral or logical inconsistency in promoting measures that explicitly endorse or reinforce [a] … view of animals [as instrumentalities of humanity] and at the same time articulating a long-term philosophy of animal rights.” [FN 52]  In a more sympathetic light, new welfarists might be thought of as realist rights advocates – taking what they can get now and hoping for more expansive reforms in the future.

Personhood

Rights advocates, as discussed above, recognize that to achieve any novel gains for animals requires a change in their legal classification – away from property and towards legal personhood.  Personhood would give animals standing in court to assert their rights, both those that may exist currently under the laws in the form of anti-cruelty statutes and those that may evolve under the common law. [FN 53] 

One way to abrogate the property status of animals, thereby conferring some aspect of personhood, without totally dismantling the current system of animal ownership would be to divide that ownership into its legal and equitable components.  Such a division is common in title to real property and the ownership interests of trusts.  At its most fundamental level, the legal interest holder is the person with legal title to the property – the record owner with the ability and responsibility to control the property.    Common examples of legal owners are the grantor of a life estate with a reversion or the trustee of a trust.  Conversely, the equitable title holder – the holder of the life estate or the beneficiary of the trust – is the person deriving benefit from the property without having control over the property’s disposition.

Such a division allows the ownership interest in property to be held by multiple people in different capacities.  In the context of animal rights, recognizing animals’ equitable interest in themselves – equitable self-ownership – could transform them from pure legal property into pseudo-persons capable of enjoying greater legal protections and more importantly holding legal interests that they could enforce in a court of law.  Humans, on the other hand, would then retain legal title to the animals, leaving that person both the ability to use that animal and the responsibility for its care. 

The creation of this new legal classification of animals could resolve the standing obstacles to the enforcement of current laws – giving Yoon, Alex, or even Luke the ability to sue for their mistreatment – as well as pave the way for more innovative and progressive protectionist laws.  At the same time, it is a far less radical step than completely dismantling the current legal status of other species and works as a balancing tool between the competing interests of man and beast. [FN 54]

What the Opposition Says

Animal rights opponents object to both the concept of rights for nonhumans and its practical implications.  On a philosophical level, animal rights would devalue humans by putting them on par with other, perhaps all other, life on the planet.  Even if one were to accept that the differences between people and animals are subtle, it is the accumulation of these differences that makes civilization possible. [FN 55]  To equate humans to animals, to really believe we are the same, one must dismiss “innate human characteristics, the ability to express reason, to recognize moral principles, to make subtle distinctions, and to intellectualize.” [FN 56]  In other words, one must dismiss a lot about humans to equate them with other species.  Moreover, such objections do not encompass the many religious objections to animal rights.  Many religions teach that it is the existence of a soul that makes human life so sacred and only humans possess souls.  Finally, one should not overlook the biblical grant of dominion over animals given to man.

In a similar but distinct vein, rights are something intrinsically unique to humans.  Rights are simply a term we attach to the special significance given to human life.  The existence of rights, and the extension thereof, is a human debate; one in which, by definition, animals cannot have a voice. [FN 57]  This principle has broader implications.  Peter Singer is famous for his accusation that humanity is “speciesist,” or heavily favors its own kind.  Others mean the same thing when they call humans homocentric or narcissistic. [FN 58]  They complain people always put people first.  But is that so wrong?  Why shouldn’t a species care most for its own, even if that means exploiting another?  Put another way, this is how the animal kingdom works.  A mother bear does not care what effect her actions have on the rest of the animals in the forest, only on her cubs.  The coyote, when he devours livestock, does not consider the impact such a taking will have on the rancher’s livelihood, must less the well-being of the cattle.

Moreover, the rights opponents contend, society always has and still does reject any notion of rights for animals.  As Steven Wise, one of the leading animal rights advocates in the country, notes, people have long treated animals as “things.” [FN 59]  Animals are things, like trees and oil, which we use for our own benefit.  This is a reality recognized by the courts.  Take for example the United States Supreme Court’s opinion in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah.  In that case, a Florida city passed an ordinance aimed at prohibiting the animal sacrifices performed by members of the Santeria religion.  The law was challenged in court on First Amendment free exercise of religion grounds.  As part of its defense, the city claimed the law was intended to safeguard animals from unnecessary suffering.  The Court rejected this argument almost out of hand, making numerous references to the cruelty humanity inflicts on animals all the time, conduct not regulated by the statute. [FN 60]

International Perspectives on Animal Law

By way of comparison, other countries have been more willing to embrace some notion of animal rights.  New Zealand, for example, enacted the Great Ape Project several years ago.  That law worked a fundamental shift in the country’s legal system by extending basic rights to humanity’s closest evolutionary relatives.  Now, under New Zealand law, these animals now possess three basic guarantees:  the right no to be deprived of life, not to suffer cruel treatment, and no to be subjected to medical or scientific experimentation.  Notice that each right is a negative one, a right to be free from something, rather than any positive rights.  The world’s reaction to the law was decidedly mixed, but to date no other countries have enacted similar laws.  Moreover, New Zealand has not expanded these animal rights any further. 

Germany, by contrast, recently wrote a very broad promise of animal rights into its constitution, though the real significance of the amendment is unclear.  After years of debate, both chambers of the German parliament agreed to include mention of animal rights in the country’s governing instrument.  There is no specific language explaining what this means.  Thus, what effect such language will have on the daily lives of German animals remains to be seen.  How will fundamental protections for animals mesh in a country known for its meat products?  Similarly, Switzerland several years ago declared animals were no longer property.  Despite this assertion, the practical status of animals within the country remains substantially the same.

India provides an example of a country with a longstanding tension like that potentially building in Germany.  India is the birthplace of some of the most animal-friendly religions in the world.  Indeed, Hinduism, Jainism, and Buddhism all contain important threads teaching respect and protection for all animal life.  To these religions, humanity is just a link in a much greater chain of existence.  Ghandi, known for his work and compassion for humans, was also a quiet but dedicated animal advocate.  Indeed, these philosophies have, in part, carried through into Indian law with several important protectionist laws.  The Indian constitution itself specifically protects animal life.  Yet, even here, these protections fall short of conferring real rights upon animals.  More importantly, the Indian ideal falls well sort of its goal and may in fact be in retreat.  Home to significant animal exploitation and exportation, including the mistreatment of cows – sacred creatures to the Hindu religion – the country is also being inundated by Western culture and its attendant treatment of animals.  Even some Buddhists, known for their vegetarianism, have repudiated their tradition for a meatier diet.

Conclusion

Just as introductions rarely represent true beginnings, neither do conclusions represent the end of the story.  Rather than providing closure, conclusions are often, looked at in another way, simply introductions to another story.  Such is the case here.  While animal rights as theory already has a significant history, animal rights as a vehicle for legal change is just taking root.  In countries around the world changes in the legal status of other animals is already underway and several localities in the United States are beginning the slow process of fundamental change.  The question is no longer whether it makes sense to debate the place of animals in our society.  Rather, the issue has already been raised.  The question now is how that debate should be conducted and how the questions raised should be resolved.     

 


 

[FN 1] Such stories include tales of liberation raids by the Animal Liberation Front or People for the Ethical Treatment of Animals’ “I’d Rather go Naked than Wear Fur” campaign.  See http://www.peta.org for the latter. 

[FN 2] See, e.g., CNN.com, Report: Dogs are Smarter than People Think, available at: http://www.cnn.com/2002/TECH/science/07/31/dogs.reut/index.html

[FN 3] Beastly Behavior?: A Law Professor Says It's Time to Extend Basic Rights to the Animal Kingdom, Wash. Post, June 5, 2002, at C-01, William Glaberson, Legal Pioneers Seek to Raise Lowly Status of Animals, N.Y. Times, Aug. 18, 1999 at A-1. 

[FN 4] Janice Newmann, Legal Beagles, Chicago Tribune, July 28, 2002; see also Ambuja Rosen, All Client Great and Small, Student Lawyer 29 (Dec. 1998). 

[FN 5] The Royal Society for the Prevention of Cruelty to Animals was founded in 1824.  Not long after, its American counterpart came into being.  Yet, even before there was a United States, America’s first animal cruelty statute was passed in the Massachusetts Bay Colony in 1641.  Beth Ann Madeline, Cruelty to Animals: Recognizing Violence Against Nonhuman Victims, 23 U. Haw. L. Rev. 307, 309 (2000). 

[FN 6] Ruth Harrison, Animal Machines (1964). 

[FN 7] Peter Singer, Animal Liberation (1975). 

[FN 8] Peter Singer, Animal Liberation 6 (2d ed. 1991).

[FN 9] Id

[FN 10] For a more detailed description of Alex, see Steven M. Wise, Drawing the Line: Science and the Case for Animal Rights 87 – 112 (2002). 

[FN 11] Martha Nussbaum, Animal Rights: The Need for a Theoretical Basis, 114 Harv. L. Rev. 1506, 1506-07 (2001). 

[FN 12] MSNBC.com, Cloned Cows Make Human Antibodies, http://msnbc.com/news/793119.asp (accessed Aug. 12, 2002). 

[FN 13] The New Lexicon Webster’s Dictionary of the English Language (1989). 

[FN 14] Bernard E. Rollin, Animal Rights and Human Morality 111 (1992).

[FN 15] Id. at 110–111. 

[FN 16] Id. at 117. 

[FN 17] Id. at 116. 

[FN 18] Gary L. Francione, Animal Rights and Animal Welfare 48 Rutgers L. Rev. 397, 405 (1996). 

[FN 19] Donald N. Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles are Required, 34 Fam. L.Q. 441, 453 (2000). 

[FN 20] Daniel A. Farber, Environmental Litigation After Laidlaw, 30 Envtl. L. Rep. 10516, 10517 (2000). 

[FN 21] Ass’n of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 153 n.1 (1970). 

[FN 22] See Wise, Drawing the Line, supra note 10 at 31. 

[FN 23] See Christopher D. Stone, Should Trees Have Standing? Towards Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972). 

[FN 24] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

[FN 25] Note, Standing Upright: The Moral and Legal Standing of Humans and Other Apes, 54 Stan. L. Rev. 163, 193 (2001);  see also Defenders of Wildlife, 504 U.S. at 560; Note, Standing on Shaky Ground: The Supreme Court Curbs Standing for Environmental Plaintiffs in Lujan v. Defenders of Wildlife, 38 St. Louis U. L.J. 199 (1993). 

[FN 26] See, e.g., Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C. Cir. 1998)

[FN 27]International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U.S. 72 (1991)

[FN 28] Wise, Drawing the Line, at 10-11. 

[FN 29] 2 Am. Dec. 264 (N.Y. 1805). 

[FN 30] 103 Eng. Rep. 1127 (Q.B. 1707). 

[FN 31] See King James Bible, Book of Genesis 1:20–25. 

[FN 32] Gary L. Francione, Animals, Property and Legal Welfarism: “Unnecessary” Suffering and the “Humane” Treatment of Animals, 46 Rutgers L. Rev. 721, 733 (1994). 

[FN 33] Id

[FN 34] For a more detailed discussion of animals status as property, see Gary L. Francione, Animals, Property and the Law (1995); see also Steven M. Wise, The Legal Thinghood of Nonhuman Animals, 23 B.C. Envtl. Aff. L. Rev. 471 (1996). 

[FN 35] David S. Favre & Murray Loring, Animal Law 123-143 (1983). 

[FN 36] See, e.g., Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001); see also Note, ‘Man’s Best Friend’: Property or Family Member? An Examination of the Legal Classification of Companion Animals and its Impact on Damages Recoverable for Their Wrongful Death or Injury, 47 Vill. L. Rev. 423 (2002)

[FN 37] Francione, Animals, Property and the Law supra note 34 at 18. 

[FN 38] 7 U.S.C. §§ 2131–2157 (1994)

[FN 39] 7 U.S.C. §§ 1901–1906 (1994). 

[FN 40] Francione, Animals, Property and the Law supra note 34 at 18. 

[FN 41] Laura G. Kniaz, Animal Liberation and the Law: Animals Board the Underground Railroad, 43 Buff. L. Rev. 765, 793 (1995). 

[FN 42] Professor Wise, for example, uses a statistical hierarchy in his book Drawing the Line to rank the rights-worthiness of various animals from honeybees to his own son. 

[FN 43] Id. at 398. 

[FN 44] Tom Regan, Defending Animal Rights 11 (2001). 

[FN 45] Id

[FN 46] For a detailed discussion of the distinction between rights and welfare, as well as the possibility of less radical and dramatic rights advances, see Gary L,. Francione, Rights Without Thunder (1996).  For a comparison of animal rights and utilitarianism, see Gary L. Francione, Animal Rights Theory and Utilitarianism: Relative Normative Guidance, 3 Animal L. 75 (1997)

[FN 47] Gary L. Francione, Animal Rights and Animal Welfare, supra note 18 at 397.  

[FN 48] Francione, Rain Without Thunder, supra note 46 at 36–37. 

[FN 49] Id

[FN 50] Id

[FN 51] Id

[FN 52] Id

[FN 53] See Francione, Animals, Property and the Law, supra note 18. See also Gary L. Francione, Animals as Property, 2 Animal L. I (1996)

[FN 54] For a more detailed discussion of equitable self-ownership, see David Favre, Equitable Self-Ownership for Animals, 50 Duke L.J. 473 (2000). 

[FN 55] David R. Schmahmann & Lori J. Polacheck, The Case Against Rights for Animals, 22 B.C. Envtl. Aff. L. Rev. 747, 751 (1995). 

[FN 56] Id. at 752. 

[FN 57] Id. at 754-55. 

[FN 58] Steven J. Bartlett, Roots of Human Resistance to Animal Rights: Psychological and Conceptual Blocks, 8 Animal L. 143, 153-54, 163-71 (2002)

[FN 59] Wise, The Legal Thinghood of Nonhuman Animals

[FN 60] 508 U.S. 520, 535-36 (1993).

 

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