Unleashing Rights- Helena Silverstein
Interviewer: C.Vaughan

Helena Silverstein is F. M. Kirby Assistant Professor of Government and Law, Lafayette College. Her book, Unleashing Rights is a book that illustrates the relationship between law, social movement activism, and social change. The book joins the ongoing debate within public law scholarship that is concerned with the effectiveness of legal strategies and languages. The book also speaks to those interested in the general study of social movements and in the particular study of the animal rights movement. With its cultural approach focused on rights language and the construction of meaning, the work will be of interest to the disciplines of law and political science, as well as those who study sociology, anthropology, and philosophy.

Abolitionist: In Unleashing Rights you say your research concerns the relationship between law and social change. What did you find by studying the animal rights movement to study this relationship?

Helena Silverstein: What I found was that the law was used by animal rights advocates to advance their kind of vision of change. The law was used by a lot of people consciously and cautiously in an effort to strategically deploy the legal system for the purposes of advancing social change for animals. What I was surprised about was that the law worked well in the context of a legal system that really doesn’t do that much in the way of protecting animals.

In Unleashing Rights you say that in the realm of political activism animal rights has become the dominant language. Animal rights activism stresses the values of relationship, responsibility, caring and community to get behind the animal rights causes. In law itself “rights” emphasizes almost the opposite, that being individualism, separation and freedom from interference. Animal rights have imbued the language of rights with new content. Is it plausible in law to recognise that? Is the law flexible enough to cultivate alternative values upon which “rights” can be founded?

It was fascinating to me when I did the research to come to that conclusion. The legal system in the United States is what I studied. The law focuses on rights discourse that is primarily individualistic. I didn’t anticipate that using the law would be particularly helpful in the context of animals because what the animal rights movement is advocating is more caring and collective than an individualistic kind of approach. I was interested in what animal advocates had done in imbuing the language of rights and imbuing the law with a more social perspective and caring aspect.

I could see that penetrating the official realm of the law is more complicated because the legal system predominantly has a more individualistic view of “rights” and the way in which “rights” work for example. I do think that the law is malleable enough, even the official realm of the law when judges are ruling on cases, statutes or interpreting rights. I think there is space in the legal system to accept that alternative language so I do think there’s room for it and I do think that it happened to some extent with the animal rights movement, but more through influencing movement mobilization than affecting the official realm of the law. The animal rights movement pushed a certain type of discourse and altered the meaning of rights, and that affected the Movement advocates themselves and affected the membership and worked more effectively in the context of motivating Movement advocacy to try and bring consciousness to an activism for animal rights.

Your intention was never to seek to answer the philosophical question of whether animals have rights. Your decision to study the animal rights movement didn’t grow out of activism or prior interest in the movement. It arose because of three particular topics: a. the natural rights theory b. legal theory and c. theories of social change. Is that right?

I was in graduate school when I started this research. I was studying public law both from a philosophical and practical basis. In the context of my studies I was studying the intersection between law and social change. How it is that law is used in social change, how it limits the ability for social change to take place, how a dominant legal system frames and constrains in particular radical social change and I was looking at the animal rights movement, the women’s movement, the civil rights movement, the environmental movement and so forth. At that time the animal rights movement was a relatively new Movement. It had just began to use litigation and certainly the language of animal rights. It had just begun to take actions by way of the Courts and I thought this was a nice opportunity to see empirically whether the law is primarily constraining or whether or not it would offer opportunities to create change. What I thought was if any Movement was going to show the opportunities and/or the limits of the law then it would be the animal rights movement. At that time the animal rights movement was quite out there on the fringes and was using the language of rights and the law in a realm where animals don’t have rights. If it was going to work in that context then it was saying something pretty powerful about the way in which the law has the power to afford change even by those who are on the margins.

I didn’t find that the law is all opportunity and wonderful and creates this dramatic change. I found that it offers an avenue—especially when used in conjunction with other sorts of political activism—it offers an avenue that really can provide some sort of leverage for activists who are trying to do something for a group of beings that don’t otherwise have a voice.

Despite formidable restraints in the realm of litigation, Movement practices have attempted to reconstruct the law and it’s meaning in a variety of ways. Does litigation promote changes in the law?

It does. It doesn’t always. To my mind it provides a double edge sword. Litigation is constraining in many, many ways as you can bring only certain kinds of law suits, you have to frame your claims in a certain way, you need people to show standing to be able to bring a law suit and on and on and on there are a whole list of constraints that make litigation a limited avenue for advancing change. In time though if you wind things up in a certain way when you can get into the courthouse door with a lawsuit that can gain publicity that can foster education and it can be used as leverage. One of the interesting things about litigation is, as limiting as it is, as far as the structural constraints that surround it, you don’t need a huge amount of mobilization to bring lawsuits. It’s different than a protest where you mobalise 10,000 people out to have a big protest march. With litigation, if you find a plaintiff, find a couple of good lawyers and maybe you have a organisation behind you to promote it, you don’t need that many people to get change, you only have to convince a few people like a Judge in the lower courts and then another set of Judges in the upper level of the courts. There are only a few people you have to convince to make change. I think it provides an opportunity that is not otherwise available.

Is there a language of liberation written into law?

Not in the United States. Of course there is the language of liberty which is important within the US context and certainly within the Constitutional context in the United States. There’s Constitutional protection for the right to life, liberty and property that cannot be denied without due process of the law.

Liberation is an interesting but different concept. Liberation is different from liberty because liberation suggests I think to some extent providing liberation for some group that doesn’t have it. Liberation involves one group liberating others, and the legal system has very little about that kind of notion of liberation. Even if we speak about liberty it’s always spoken about, in the legal context, for humans. It does not extend to animals. It’s a very, very limited conception of the right to liberty for non-humans.

In legalistic terms when we speak about “rights” does this mean equal rights, specific rights or limited rights. Can it mean all 3 for animals or something different?

Certainly we’re not talking equal rights for animals compared to human beings. I don’t think that anyone who advocates for animal rights is suggesting that animals have the same rights as humans. We all acknowledge there are certain differences just as among human beings there are some differences that justify preferential treatment such as a three year old doesn’t have the same sort of rights as an adult has. You wouldn’t necessarily equate animal rights with human rights. Primarily I think when we are talking about animal rights here we are talking about the right of animals to live freely and without suffering and with a measure of dignity. In the US context we are very, very far legally speaking from acknowledging, even from a limited conception, rights for animals. Animals really don’t have any real rights at this point in time.

Instead of Statutory law could Common law work for animal rights purposes?

I think that statutory law in the United States has room for protecting, at least in a limited respect, for animals. I think you can make some significant headway with the statutory system.

Again in Unleashing Rights you have said with rights language in the case of a child’s right to have an education, as an example, there’s always an assumption that somebody will have to do something to provide that education. In an animal rights context will this be the same experience? Is it going to be that complex?

For the most part when you’re talking about a certain type of animal right you’re talking about rights that require action on the part of others. There is an obligation on the part of others to take steps. When we are talking about animals we’re not just speaking about the right to be left alone. For the idea that an animal has the right not to be hunted would only require people to stop hunting so there’s a difference between stopping somebody from doing something and for “rights” someone will have to take action on behalf of the animal. In a lot of regards animal rights requires humans to take positive steps to protect animals. There is a significant conflict there because humans are quite comfortable using other beings for our own interests and desires and when we start telling humans to stop doing something for the sake of nonhuman animals then I think plenty of people will be reluctant to do that.

Are “rights” as they stand today a tool by the ruling class to maintain its position of power?

Yes and no. When I started doing the research on the animal rights movement my perspective was that rights language is a tool predominantly being used by those in power to frame ideas and perceptions. I think yes. Again in the United States as they are primarily construed on the whole are primarily reinforcing the existing structure and the prevailing hegemonic system but I also think that rights language, a lot more generally, are open, malleable and indeterminate and there’s room within language and there’s room with the law to challenge that power.

I don’t mean that the room is sufficient to overturn the prevailing system or to demonstrate an absolute victory or to have a radical revolution or anything like that but I do think there is space to sometimes use the language of the ruling class, of the elite, against the ruling class. That’s an important aspect of rights language whether it is being used by the animal rights movement or some other movement.

Unleashing Rights is your book. How did it come about?

I was doing this graduate work and studying social movements and how it relates to the law and one day I was sitting around watching television, a political debate show, and there was an animal rights advocate on the show arguing with a scientist debating animal experimentation. The animal advocate started using the language of rights and I found that really interesting seeing how the language was being deployed. I expected that it would not be particularly useful for the animal rights movement to deploy that language and I imagined the movement would be co-opted by the use of that language and litigation that this person was talking about that it would be a dead-end and really this was merely showing how social movements are co-opted into the legal system and really don’t gain much by the use of the law. That was my theory and I wanted to see if it was true. I began studying the movement , reading a lot about it and interviewing animal rights activists, welfare advocates and talking to them about the law and what they think about the law and the way in which they deployed the law. I found them to be much savvier than what I first thought. They were much more careful about their use of the law and much more conscious of the law’s limitations and much more conscious of the spaces in the legal system where they could push for change.

I didn’t find naïve optimism with the animal rights people I spoke to. When I went into the research I expected to find what had been found with various movements which had fallen into the trap of thinking that the law was this great weapon and that the law was this great opportunity to put to use, and that would lead to naïve optimism about the use of the law. Whether it was an animal rights activist or a civil rights activist or a rainforest activist they would have a false hope that if only they could get a ruling from the court that say trees have rights then we would move towards a change that would make everyone happy. I thought this would be the case with the animal rights movement as I’d seen evidence of that in other social movements. What I found was that animal rights activists were not naive at all about the law and they were very aware of the obstacles in their path, not only in the realm of animal rights but also litigation, legislation and other kinds of activities. Animal rights people were much more conscious of these limitations than I thought they would be and that was surprising to me.