THE RIGHTS OF ANIMALS
There are tens of millions of domestic dogs in the United States, owned by tens of millions of households. Over half of these households give Christmas presents to their dogs. Millions of them celebrate their dogs’ birthdays. If a family’s dog were somehow forced to live a short and painful life, the family would undoubtedly feel some combination of rage and grief. What can be said about dog owners can also be said about cat owners, who are more numerous still. But as a result of human action, millions, even billions, of animals, not so different from dogs and cats, live short and painful lives. Should people change their behavior? Should the law promote animal welfare? Should animals have legal rights? To answer these questions, we need to step back a bit.
Many people find the very idea of animal rights implausible and perhaps even ridiculous. Immanuel Kant urged that animals are neither rational nor self-aware. He thought of animals as “man’s instruments,” deserving protection only to help human beings in their relationships with one another. “He who is cruel to animals becomes hard also in his dealings with men,” he wrote.”1 But the English utilitarian Jeremy Bentham took a radically different approach, going so far as to suggest that the mistreatment of animals was akin to slavery and racial discrimination:
The day may come when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor . . . 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?2
John Stuart Mill concurred, repeating the analogy to slavery.3 Most people consider that analogy extreme. But the animal rights debate has been gaining traction. In 2002 Germany became the first European nation to guarantee animal rights in its constitution, adding the words “and animals” to a clause that obliges the state to respect and protect the dignity of human beings.4 The European Union has done a great deal to reduce animal suffering. In the United States, consumer pressures have led to improved conditions for animals used as food.
Notwithstanding its occasional appeal, the idea of animal rights has also been disputed with extraordinary intensity. Many people think that animal rights advocates are fanatical and even bizarre, willing to trample on important human interests for the sake of rats, mice, and salmon. For their part, some advocates believe that their adversaries are selfish, unthinking, cruel, and even morally blind.
In this chapter, I have three goals. The first is to suggest the possibility of reducing the intensity of the debate by demonstrating that almost everyone believes in animal rights, at least to some degree. The real question is what the idea of “animal rights” actually means. The second is to give a clear survey of the lay of the land—to show the range of possible positions and to explore what issues separate reasonable people. In this way, I attempt to provide a kind of primer for current and coming debates. My third goal is to defend a particular position about animal rights, one that, like Bentham’s, emphasizes the issue of animal suffering. This position requires rejection of some of the most radical claims by animal rights advocates, especially those that stress the “autonomy” of animals, or that object to any human control and use of animals.
But my position has strong implications of its own. For example, it suggests that to avoid unjustified suffering, the uses of animals in entertainment, scientific experiments, and agriculture should be regulated. One hundred years from now, some of those uses might well be regarded as forms of unconscionable barbarity. In this respect, Bentham and Mill were not entirely wrong to offer an analogy between the treatment of animals and human slavery.
WHAT ANIMAL RIGHTS MIGHT ENTAIL
THE STATUS QUO
If we understand “rights” to confer legal protection against harm, then many animals already do have rights, and the idea of animal rights is not terribly controversial. And if we take the word to mean a moral claim to such protection, there is general agreement that animals possess certain kinds of rights. Of course, some people, including the French philosopher Descartes, have argued that animals are like robots and lack emotions; according to this view, people should be allowed to treat an animal however they wish. But to most people, including sharp critics of the very idea of animal rights, this position is untenable. Almost everyone agrees that people should not be able to torture animals or engage in acts of cruelty against them. And indeed, state law contains a wide range of protections against cruelty and neglect. We can build upon existing law to identify a simple, minimal position in favor of animal rights: the law should prevent acts of cruelty to animals.
In the United States, state anticruelty laws include prohibitions on torturing, beating, injuring, and the like, and they also impose affirmative duties on people with animals in their care. New York’s provisions are representative. In that state, criminal penalties are imposed on anyone who transports an animal in a cruel or inhumane manner, or in such a way as to subject it to torture or suffering—conditions that can come about through neglect. People who transport an animal on railroads or in cars are required to allow the animal out for rest, feeding, and water every five hours. Nonowners who have impounded or confined an animal are obliged to provide breathable air, water, shelter, and food. Those who abandon an animal, including a pet, in public places face criminal penalties. A separate provision forbids people to torture, beat, maim, or kill any animal, and also requires them to provide adequate food and drink.
Like most states, New York forbids overworking animals or using them for work when they are not physically fit. Compare in this regard the unusually protective California statute, which imposes criminal liability on negligent as well as intentional overworking, overdriving, or torturing of animals. Torture is defined not only in its conventional sense but also to include any act or omission “whereby unnecessary or unjustified physical pain or suffering is caused or permitted.”
If taken seriously, provisions of this kind would do a great deal to protect animals from suffering, injury, and premature death. But animal rights, as recognized by state law, are sharply limited, and for two major reasons. First, enforcement can occur only through public prosecution. If horses and cows are being abused at a local farm, or if greyhounds are forced to live in small cages in violation of state law, protection will come only if the prosecutor decides to provide it. Of course, prosecutors have limited budgets, and animal protection is rarely a high priority. The result is that violations of state law occur with some frequency, and there is no way to prevent them. The anticruelty prohibitions contrast sharply, in this respect, with most prohibitions protecting human beings, which can be enforced both publicly and privately. For example, the prohibitions on assault and theft can be enforced through criminal prosecutions, brought by public officials, and also by injured citizens, proceeding directly against those who have violated the law.
Second, the anticruelty provisions of state law contain large exceptions. They do not apply to the use of animals for medical or scientific purposes. To a large degree, they do not apply to the production and use of animals as food. The latter exemption is the most important. Billions of animals are killed for food annually in the United States, with 24 million chickens and some 323,000 pigs slaughtered every day.5 The cruel and abusive practices sometimes involved in contemporary farming are largely unregulated at the state level. Because the overwhelming majority of animals are raised and used for food, the coverage of anticruelty laws is actually relatively narrow.
ENFORCING EXISTING RIGHTS
If the suffering of animals matters—and most people seem to think that it does—we should be troubled by these limitations. Perhaps the least controversial response would be to narrow the “enforcement gap” by allowing private suits to be brought in cases of unlawful cruelty and neglect. Reforms might be adopted with the limited purpose of stopping misconduct that is already against the law, so that the law actually means in practice what it says on paper. Here, then, we can find a slightly less minimal understanding of animal rights. On this view, representatives of animals (typically their owners) should be able to bring private suits to insure that anticruelty and related laws are actually enforced. If, for example, a farm is treating horses cruelly and in violation of legal requirements, a suit could be brought on behalf of those animals to bring about compliance.
In a sense, this would be a dramatic proposal, because it could even be understood to mean that animals should be allowed to sue in their own name (though the owner would be the more likely plaintiff). Whoever the nominal plaintiff was, there would be no question that the suit was being brought to protect animals, not human beings. The very idea might seem absurd. But it is simpler and more conventional than it appears. Needless to say, any animal would be represented by a human being, just like any other litigant who lacks ordinary (human) competence. For example, the interests of children are protected by prosecutors and also by trustees and guardians in private litigation brought on children’s behalf.
Why should anyone oppose an effort to promote greater enforcement of existing law by supplementing the prosecutor’s power with private lawsuits that are squarely founded in that law? Perhaps the best answer—and it is a reasonable one—lies in a fear that some or many of those lawsuits would be unjustified, even frivolous. Perhaps animal representatives would bring a flurry of suits, not because of cruelty or neglect or any violation of law, but because of some kind of ideological commitment to improving animal welfare in a way that might go well beyond what the law actually says. If this is a genuine risk, it might make sense to require anyone who brings a frivolous suit to pay the defendant’s legal fees (and perhaps additional penalties as well).
Of course, there would be issues in deciding on the identity of representatives and choosing the people who would pick them. And there would be strong and legitimate objections to any effort to allow suits to be brought not by but against an animal’s owner. But insofar as owners are authorized to enforce existing law, we may not yet be in especially controversial territory. Many of those who ridicule the idea of animal rights believe in anticruelty laws, and with appropriate qualifications, they should support efforts to insure that those laws are actually enforced.
INCREASED REGULATION OF SCIENCE, FARMING, AND MORE
We might focus our attention not only on the “enforcement gap” but also on areas where current law offers little or no protection. In short, the law might consider appropriate regulation of scientific experiments, entertainment, and (above all) farming to safeguard against unnecessary and unjustified animal suffering. It is easy to imagine a set of initiatives that would do a great deal here, and indeed, European nations have moved in just this direction. There are many possibilities; some of them are reflected, to one or another degree, in existing practice.
Building on that practice, private institutions or the law might direct scientists to justify experiments on animals by showing, in front of some kind of committee or board, that (1) such experiments are actually necessary or promising and (2) the animals involved will not be subjected to unnecessary suffering. If dogs or chimpanzees are going to be used as test subjects in the development of some medical treatment, they should not be treated cruelly, and they should be decently fed and housed.
With respect to agriculture, controls might be similarly motivated. Of course, it would be best if such controls were instituted voluntarily. If cows, hens, and pigs are going to be raised for use as food, they should be treated decently in terms of food, space requirements, and overall care. The European Union has taken significant steps of this sort,6 banning the standard bare wire cage for hens and requiring that they be provided with access to a perch and nesting box for laying eggs.7 If we focus on suffering, as I believe we should, it need not be impermissible to kill animals for food, but it should be impermissible to show complete indifference to their interests while they are alive. So, too, for other animals on farms, even or perhaps especially if they are being used for the benefit of human beings. If sheep are going to be used in the manufacture of clothing, they should not live in conditions that involve gratuitous suffering.
I believe that steps in this direction deserve serious consideration. But here things become far more controversial. Partly this is because of sheer ignorance about what actually happens to animals in, say, farming and scientific experimentation. I am confident that greater regulation would be given consideration if current practices were widely known. To some extent, the controversy is a product of the sheer political power of the relevant interests, which intensely resist regulation. But sensible objections might be raised against some imaginable regulatory strategies, for one simple reason: the legitimate interests of animals and the legitimate interests of human beings can collide. Here, as elsewhere, additional regulation would be costly and burdensome. The relevant costs must be taken into account. It is possible to fear that regulating scientific experiments on animals would lead to less animal experimentation—and to less in the way of scientific and medical progress. If farms are regulated, the price of meat will rise. If the health of human beings could be seriously compromised by regulating experiments on animals and farming, there is reason to engage in some balancing before supporting that regulation.
At the very least, I suggest that animal suffering should count, and that any measures that impose suffering and harm should be convincingly justified. If animals are being made to suffer to produce cosmetics and hair dyes, the justification seems likely to be weak. To make a sensible assessment, it would be helpful to know a great deal about the facts, not only about values. An important dispute in the domain of scientific experimentation is whether and to what extent animal experiments really hold out a great deal of promise for medical progress. If scientists are able to develop treatments for AIDS and cancer, the claim is much stronger.
ELIMINATING CURRENT PRACTICES?
Suppose that animal suffering concerns us. Some people might be tempted to conclude that certain practices cannot be defended and should not be allowed to continue, if mere regulation will inevitably be insufficient and do little to alleviate animal suffering. To make that argument convincing, it would be helpful to demonstrate not only that the harms to animals are serious but also that the benefits to humans are insufficient to justify continuing these practices. Many of those who urge radical steps—for example, that people should not eat meat—do so because they believe that without such steps, the level of animal suffering will be unacceptably severe.
To evaluate this position, there is no choice but to go area by area. Consider greyhound racing. Greyhounds tend to live in miserable conditions, and many of them are put to death after their racing careers end. I believe that if possible, the preferred step should be to use the law to insure that greyhounds are afforded decent lives—and to hope that the racing industry will comply with the law that promotes that goal. But if the law cannot insure humane treatment, perhaps greyhound racing should be abolished. It is not obvious that the entertainment gain, for some people, is sufficient to justify significant suffering.
Of course, a key issue involves eating meat. I believe that meat eating would be acceptable if the animals used for food were treated decently. But if, as a practical matter, animals used for food are almost inevitably going to endure terrible suffering, then there is a good argument that people should not eat meat. No one doubts that a legal ban on meat would be radical and extreme, and I am certainly not arguing in its favor. Even more than Prohibition—the era from 1920 to 1933, when alcohol was banned in the United States—such a ban would have a series of adverse consequences. But the principle seems clear. People should be less inclined to eat meat if their refusal to do so would prevent significant suffering.
There is an objection, utilitarian in spirit, to steps of this kind. If people do not eat meat, or if they take other steps to prevent animals from suffering, fewer animals will be born and raised. In one view, it is objectionable to protect animals through measures that reduce the total number of animals. Perhaps it is better for animals to have lives, even difficult ones, than not to have lives. But this objection is weak. Our goal should be to improve the quality of animals’ lives, not to increase their numbers.
My argument—that we should consider refraining from certain practices if this is the only feasible way to avoid widespread suffering—raises a host of questions. Shouldn’t it be possible to reduce the level of suffering in scientific experiments by, for example, requiring animals to be adequately sheltered and fed? It would also be valuable to ask some factual questions. If vegetarianism were widespread, would human health be undermined (as many contend) or improved (as many others contend)? After the factual questions are resolved, disputes will remain about the weight to be given to the various interests.
THE QUESTION OF ANIMAL AUTONOMY
Some people go further. They focus not only, and perhaps not mostly, on relieving suffering. On one view, animals have rights, in the sense that they should not be subject to human use and control. This is not a Bentham-inspired point about the prevention and relief of suffering. It is instead a suggestion that animals deserve to have a kind of autonomy. This suggestion goes well beyond the view, which seems to me correct, that animals should be seen as ends rather than solely as means. Many people who own pets, or who use horses in shows or for racing, do not consider their animals to be mere means to human ends. They agree that animals have intrinsic value as well as instrumental value. But those who think that animals should not be subject to human control tend to reject all of these uses. They want all or most animals to be able to make their own choices, free from human control.
This claim raises many questions, and in the end, it seems to me extreme and unconvincing, mostly because it neglects the possibility that animals will have short and miserable lives under natural conditions, and much better lives with a degree of human control. The most obvious point is that it is not clear whether and how this position might be applied to pets. Dogs and cats have been bred specifically for human companionship, and most of them would not fare well on their own. Perhaps those who believe in animal autonomy would accept the idea that people should be able to have control over animals that have been bred to live with them. Perhaps the autonomy argument would apply only to wild animals, prohibiting human beings from hunting, trapping, and confining them.
But what if certain practices, such as confinement in zoos, science labs, and other facilities, can be undertaken in a way that insures decent lives for the relevant animals? What if some animals, including dolphins and elephants, would fare very well under human control? Nature can be very cruel, after all, and many animals live longer and better with human beings than in the wild. Of course, longer is not necessarily better. But good zoos have breeding programs that protect endangered species, provide good care to animals, and serve an important function (for nonhuman animals and human beings alike) in educating people about the nature and worth of animals. Indeed, we could imagine that many lions, elephants, giraffes, and dolphins would have far better lives with human assistance, even if confined, than in their own habitats.
If this is so, it is not easy to see what sort of response might be made by those who believe in animal autonomy. Perhaps autonomy advocates disagree on the facts, not on the theoretical issue, and think it highly unlikely, in most cases, that wild animals can have decent lives under human control. I do not believe that they are correct on the facts. In any case, the claim for animal autonomy ultimately must depend on an assessment of what will afford animals good lives.
ARE ANIMALS PROPERTY?
I have not yet explored the debate over the status of animals as property. What underlies this debate?
There is no obvious answer. Those who insist that animals should not be treated as property might be making a simple and modest claim, which is that human beings should not be able to treat animals however they wish. They seem to think that if you are property, you are, in law and in effect, a slave, wholly subject to the will of your owner. Mere property cannot have rights of any kind. A table, a chair, or a stereo can be treated as the owner likes; it can be broken or sold or replaced at the owner’s whim. For animals, it might be thought, the status of property undermines any protection against cruelty and abuse.
Some people go so far as to urge that certain animals, at least, are “persons,” not property, and should have many of the legal rights that human beings enjoy. Of course, this claim does not mean that those animals can vote or run for office. Their status would be akin to that of children—a status commensurate with their capacities. What that status is, exactly, remains to be spelled out. But at a minimum, it would seem to entail protection against torture, battery, and perhaps even confinement.
There is, however, a major puzzle here. What does it mean to say that animals are property and can be “owned”? As we have seen, animals, even if owned, cannot be treated however the owner wishes. The law already forbids cruelty and neglect. Ownership is merely a label, connoting a certain set of rights and duties, and without knowing a lot more, we cannot identify those rights and duties. A state could dramatically increase enforcement of existing bans on cruelty and neglect without turning animals into persons, or assigning them nonproperty status, or banning animal ownership.
To be sure, rhetoric matters, and most people do not consider animals to be property in the same sense that they do a table, a chair, or a stereo. But what matters is not rhetoric but conduct. The goal should be to protect animals against cruelty and abuse. The debate over whether animals are property is mostly a distraction.
People do not see all animals as equal. They might agree that human beings should consider the interests of dogs, cats, horses, and dolphins, but they are unlikely to think the same about ants, mosquitoes, and cockroaches, and they do not much love rats and squirrels. It is often objected, to those who believe in animal rights, that their position would lead to truly ludicrous conclusions—to the suggestion that people cannot kill ants or mosquitoes, or rid their houses of rats and cockroaches.
There are two ways to answer this objection. The first, holding special appeal for those who stress autonomy, would inquire into the cognitive capacities of the particular animals involved. We would draw the line by seeing how well the animals in question think. But this view seems to me misdirected. Jeremy Bentham was right to place the emphasis on whether and to what extent the relevant animal is capable of suffering. In deciding whether animals are entitled to consideration, the question is whether they can suffer.
This claim need not be viewed as radical or extreme. Many people already take account of whether animals are suffering. In my view, ants and mosquitoes have no claim to human concern, and this is because they suffer little or not at all. When we are ridding our homes of mice, many of us do so in ways that do not maximize distress. Here we have some empirical questions about the capacities of various creatures. And we should certainly be willing to engage in a degree of balancing. If, for example, human beings are at risk of illness and disease from rats, there is no question that they have a strong justification for eliminating or relocating them.
ANIMAL RIGHTS WITHOUT CONTROVERSY?
Even the sharpest critics of animal rights support the anticruelty laws. The simple moral judgment behind these laws is that animal suffering matters. Most modestly, I have suggested that private suits should be permitted to prevent illegal cruelty and neglect, at least if those suits are brought by owners. There is no sufficient reason to give public officials a monopoly on enforcement; such a monopoly is a recipe for continued illegality. Less modestly, there is no good reason to permit the level of suffering that is now being experienced by millions—even billions—of living creatures.
I have also raised doubts about the radical idea that animals deserve to have autonomy, understood as a right to be free from human control and use. In my view, the real questions involve animal welfare and suffering, and human control and use may be compatible with decent lives for animals. But the emphasis on suffering, and on decent lives, has significant implications. Of course, it is appropriate to consider human interests in the balance, and human interests will often outweigh those of nonhuman animals. But the problem is both simple and serious. Far too much of the time, the interests of animals are not counted at all.