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ANTI-SPECIESISM: The Appropriation and Misrepresentation of Animal Rights in Joan Dunayer's Speciesism (Unabridged)by Jeff Perz, M.A.
Contents
IntroductionSpeciesism is a book that, for the most part, makes highly progressive, radical and laudable claims regarding animal rights theory and practice. It is unfortunate that its author, Joan Dunayer, not only fails to argue for many of these claims but also borrows them from the meticulously argued-for conclusions of another author; Gary L. Francione. After basing the majority of her work on Francione’s[1], it is astonishing that Dunayer proceeds to mischaracterize and dispute some of Francione’s conclusions, claiming that they contradict the animal rights theory that Francione developed in the first place, the very theory that Dunayer appropriates without providing adequate citation. These are the serious charges that I will now establish. Doing so is of the utmost relevance to the increasingly prominent fields of non-human animal law, philosophy and political advocacy. In a world in which non-human animal advocates compare the continuing U.S. “war on terrorism” in Iraq with the consumption of animal products[2] and state legislatures introduce bills that define “animal rights terrorist organizations” as two or more individuals who “support” any action that is intended to “deter” anyone from participating in any activity involving animals[3] – all while animal rights law is being taught at prestigious universities[4] – the need for clarity is paramount. Francione offers this clarity while Dunayer’s Speciesism obscures it.[5] PronouncementsDunayer defines “speciesism” as “a failure, in attitude or practice, to accord any nonhuman being equal consideration and respect.”[6] Although the definition itself is highly questionable[7], it is noteworthy that Dunayer grounds it by arguing that it is not immoral to kill or otherwise harm human animals for the reason that they possess abstract reason, language and so on—and this is so because it is immoral and illegal to kill or otherwise harm humans who lack those qualities.[8] This argument begs the question; the alleged truth of its conclusion is contained within its undefended premises. That is, it is logically equivalent to the claim that killing or otherwise harming human animals (who may or may not possess abstract reason and so on) is immoral because it is immoral to kill or otherwise harm non-human animals (who do not possess abstract reason and so on). While Dunayer’s claim may be true, she does not support it with valid argument. Dunayer goes on to argue that killing or depriving any human or non-human animal of well-being (except in emergencies) is immoral because, as sentient beings, harming them causes them to suffer and killing them deprives them of future (sense) experiences.[9] Again, without further argument[10], this is a non-sequitur. Thus, Dunayer’s argument for giving (sentient) human and non-human animals full and equal moral consideration – and her definition of speciesism that is grounded in this argument – are inadequate. In fact, this argument of Dunayer’s is a version of the classic “argument from marginal cases,” which has been refuted.[11] Conversely, in Francione’s Introduction to Animal Rights, a unique, well argued moral theory is presented – intended for general audiences – that is grounded in principles that most everyone already accepts.[12] Appropriation of Moral TheoryDunayer examines and rejects several purported justifications for speciesism. Some of these include religious beliefs, lack of or diminished sentience, lack of self-awareness, lack of moral agency and lack of or diminished inherent value. Francione addresses all of these. Religious BeliefsIn 2004, Dunayer notes that the Christian Bible condones the exploitation of non-human animals[13] and, not only do many Christians accept this view, but at least some Christians also hold the additional view that non-human animals lack souls.[14] Dunayer counters that these claims are not argued for with evidence, reasoning or logic[15] and asserts that possessing a soul is irrelevant to having basic rights, or to not being subjected to suffering and death.[16] She further notes that Biblical claims that endorse the slavery of human animals and sexism are likewise not argued for.[17] Moreover, Dunayer notes that many human animals who believe that non-human animals exist for their use also reject the theory of evolution because that theory indicates a biological kinship between human and non-human animals—a fact which conveys moral responsibility in the minds of some.[18] Dunayer counters by noting that there is a wealth of evidence supporting evolutionary theory.[19] Dunayer does all of this without citing Francione’s work. In 2000, Francione argued that one cannot consistently both claim that exploiting non-human animals exclusively as resources is justified due to the Judeo-Christian tradition (the Book of Genesis in particular) – or is justified due to the modern theory of private property found in current English and U.S. law (developed by John Locke) that is based upon that Biblical tradition – and claim that non-human animals have any moral significance whatsoever.[20] This insight rests on a previous argument of Francione’s[21] briefly summarized as follows: “We claim to accord animals some moral status through the humane treatment principle, but because we regard animals as property, the balance of interests required by the humane treatment principle is never realized through animal welfare laws [or other suggested policies for animal exploitation rooted in the Biblical tradition]”.[22] Thus, Francione advises that we reject the instrumental use of non-human animals in order to avoid this contradictory behavior.[23] Moreover, Francione argued that although Christian theology maintains that non-human animals do not have immortal souls and this (in addition to the Book of Genesis, the New Testament’s account of Jesus’ indifference towards non-human animals, St. Thomas Aquinas’ use of these accounts and the philosophy of Locke that followed) supposedly justifies using them exclusively as resources[24], this view not only assumes that God exists[25] but also presupposes “that God literally created humans as a finished product (rather than creating matter that evolved into human and other life forms); that God endowed only humans with souls; that the possession of a soul is a necessary prerequisite for possessing any moral significance; and that God created [non-human] animals exclusively as means to our ends. If we do not accept a very literal creation story, then Locke’s justification for the status of animals as property has no basis.”[26] Francione also argued that one cannot consistently maintain that the use of animals exclusively as resources is justified due to Biblical passages and reject other Biblical passages that condone human slavery and sexism, as well as require capital punishment for the purported crimes of reviling one’s parents, trespassing on sacred ground, homosexuality, witchcraft and prostitution.[27] Francione notes that there is a lack of explanation as to why the Biblical passages supporting the oppression of non-human animals should be accepted while those passages supporting the oppression of human animals should be rejected.[28] From this paragraph and the preceding one, it should be clear that the only difference between what Francione concludes in 2000 and what Dunayer rehashes without citation in 2004 is that the former claims are argued for while the latter are merely blank, unsubstantiated assertions. Sentience and Self-AwarenessIn 2004, Dunayer states that a “someone” is a sentient, thinking, feeling individual with unique life experiences whereas a “something” is not.[29] She rightly criticizes speciesists for characterizing non-human animals as things.[30] Dunayer also goes into great detail describing false claims that non-human animals do not feel pain and refutes these claims with scientific evidence.[31] Moreover, she states “Nonhumans act as if they feel pain.”[32] and rhetorically[33] suggests that their behavior, memory and learning could not be explained if they lacked sentience and conscious experience.[34] Dunayer then describes the mental suffering of non-human animals.[35] Again, Dunayer does all of this without citing Francione. Francione made all of these observations and conclusions four years earlier.[36] The difference is that he did so within the context of a larger argument that relates sentience and self-awareness to interests and relates interests to an argued for principle of equal consideration of interests; namely, the principle that similar interests should be treated similarly.[37] Dunayer cites Peter Singer’s contention that the principle of equal consideration of interests applies to all sentient beings.[38] She objects, however, “that Singer gives all sentient beings equal consideration only with regard to suffering—not with regard to basic rights, including a right to life.”[39] Dunayer adds that Singer only discusses rights when speaking of human and non-human great apes and perhaps a few other species.[40] She objects that all sentient beings should have basic rights and deserve ‘equal consideration’.[41] Dunayer also takes note of and opposes Singer’s stance that it is morally acceptable to breed and kill some non-human mammalian and all non-mammalian animals if they live pleasantly, die painlessly and are replaced with new individuals after being killed for food.[42] Dunayer responds by arguing that since murdering particular individuals wrongs those individuals, they are not compensated when replaced with new, different individuals; the compensation of murder victims is impossible.[43] Contrary to Dunayer’s analysis, as stated by Singer and observed by Francione, Singer is not a rights advocate for any human or non-human animals, regardless of their being great apes or of any other classification.[44] Rather, Francione correctly observes that Singer applies utilitarianism – never rights theory – to all sentient beings but nevertheless uses the language of rights merely for “convenient political shorthand” and “thirty-second TVA news clips.”[45] Moreover, like Jeremy Bentham, Singer may accept legal (not moral) rights, but only as “measures of government” or “laws or dictates” that are consistent with the act utilitarian principle of maximizing good consequences for particular actions[46], weather these are described in terms of happiness (Bentham) or interests and preferences (Singer). Under act utilitarianism, general laws protecting legal rights may be used on a case-by-case basis for convenience but such laws must always be overridden in cases where their violation would maximize good moral consequences. As such, any rights that act utilitarians such as Bentham and Singer speak of are always legal (never moral) and are more aptly described as convenient, temporary and provisional means to maximize good moral consequences for particular actions. Thus, Dunayer’s charge that Singer allocates rights inconsistently is moot, as Singer does not allocate rights at all except insofar that his use of rights language serves his rhetorical purposes. Moreover, Dunayer’s objection that Singer does not apply ‘equal consideration’ to all animals with regard to their lives fails to address the subtleties of Singer’s questionable argument. According to Singer, the principle of equal consideration of interests applies to all sentient beings, but many sentient beings do not have an interest in continued life because they lack future desires or a continuous mental existence. Thus, Singer claims that the principle of equal consideration of interests is applied to all animals, but not all animals have the same interests. The fact that Singer holds the questionable view that certain animals lack certain interests does not entail that his view involves a failure to apply the principle of equal consideration of interests to all animals, or that he is applying the principle inconsistently. Rather, Singer applies this principle to all animals for all of the interests that he contends they have. Thus, Dunayer’s claim that Singer does not apply the principle of equal consideration to all animals with regard to their lives is misleading. Singer applies the principle consistently and the principle necessarily only applies to the interests that beings actually have. Dunayer discusses a second, and different, point when she goes on to object that all animals do, in fact, have future desires and an interest in continued life, as I discuss below. Like Dunayer in 2004, Francione in 1996 and 2000 discusses Singer’s argument that since many non-human animals supposedly do not possess desires for the future or continuous mental existences, it is justifiable to painlessly kill them and any harm that this entails to non-human animals is offset by breeding new animals to replace the ones killed.[47] Francione notes that, for Singer, this argument only applies to animals who have lead pleasant lives, as Singer holds that all animals have an interest in not suffering regardless of their mental makeup.[48] Moreover, Francione observes Singer’s contention that self-awareness, future-oriented thoughts, hopes and aspirations, meaningful relationships with others and other characteristics are relevant to the morality of killing.[49] Francione objects to Singer’s view that death does not harm certain individual sentient beings by arguing that being sentient logically implies having an interest in continued life.[50] That is, sentience entails an experiential welfare that includes the duration of one’s life and capacity to have life experiences.[51] Moreover, Francione provides persuasive arguments that sentience is a means to staying alive (not an end in itself) and that pain cannot exist without a conscious self who perceives that pain.[52] “Just as humans will often endure excruciating pain in order to remain alive, [non-human] animals will often not only endure but inflict on themselves excruciating pain—as when gnawing off a paw caught in a trap—in order to live.”[53] “… if an animal struggles against a threat to her life, the animal does prefer or desire to remain alive.”[54] Francione draws on scientific evidence to show that non-human animal learning and behavior cannot be explained unless they are self-aware.[55] He argues non-human animal self-awareness does not require self-recognition in a mirror, as many non-human animals recognize themselves in other ways—as supported by evidence.[56] Francione further cites direct scientific evidence that all non-human animals possess self-awareness and awareness of the future, again as verified by non-human animal behavior.[57] Francione relates all of this to the morally relevant interests that non-human animals possess.[58] Francione also argues that non-human animals who have been killed cannot be replaced because they have individual, distinct personalities.[59] He objects to Singer’s view that certain human animals, such as human newborns and humans who are mentally challenged, do not have an interest in continued life because they supposedly lack self-awareness.[60] Francione notes Singer’s conclusion that these humans may be painlessly killed for the purposes of others and replaced with new humans.[61] Francione rejects this view of Singer’s for reasons already discussed.[62] Francione goes on to critique Singer’s application of the principle of equal consideration of interests in detail.[63] Again, Dunayer contends that Singer is a human and non-human great ape rights advocate, and perhaps also a rights advocate for some other mammalian animals, but is a utilitarian for most animals.[64] She charges Singer of inconsistency because he fails to maintain that it is morally good to kill relatively unhappy “normal” human animals and replace them with others who will probably have happy lives but nevertheless does maintain that position with respect to most other animals.[65] Dunayer says that Singer takes this position because he holds that most animals lack self-awareness, desires about the future, continuity of conscious states over time and expectations.[66] Again, Dunayer contests this view by noting that it runs contrary to scientific evidence, and by rhetorically suggesting that the behavior of non-human animals could not be explained if they lacked the aforementioned qualities.[67] She supports this suggestion with several examples of non-human animal behavior.[68] Echoing (without referencing) Francione’s discussion of experiential welfare and a conscious self being logically prior to sentience, Dunayer adds that in the unlikely instance of their being an animal who is sentient but who lacks a continuous mental existence, he or she would nevertheless have experiences—thus qualifying the animal for rights.[69] Later on, Dunayer is more explicit: she directly states that many instances of non-human animal behavior could not be explained unless they were self-aware.[70] When discussing mirror self-recognition tests that are applied to animals who are aware of themselves in non-visual ways, Dunayer further notes that “Someone who lacks a visual image of themselves, or who doesn’t understand that a mirror is showing them their reflection, doesn’t necessarily lack self-consciousness.”[71] Dunayer’s mirroring of Francione’s work is done without any reference to it. Dunayer challenges Singer’s spurious contention that possessing a concept of a self with continuous mental states is required in order to have an interest in continued existence by arguing that this view is supposedly tantamount to the circular statement: “if someone has no conscious interest in continued existence, then continued existence isn’t in their conscious interest.”[72] She responds to this contrived statement by asserting that someone who lacks a conscious interest in continued existence may nevertheless have an unconscious interest in continued existence, as in the case of healthy [human] babies.[73] For Dunayer, this unconscious interest entails having experiences that may or may not be accompanied by a concept of death.[74] Dunayer cites Steve F. Sapontzis’s view that death can constitute a loss for someone even if he or she lacks a concept of death.[75] Moreover, Dunayer notes Sapontzis’s observations that it is illegal to murder human infants despite their not having a concept of death, that death ends all positive experiences and opportunities, and that non-human animals value their own lives—as evidenced by their efforts to avoid being killed.[76] Dunayer goes on to cite Singer’s view that the future-oriented desires of beings who possess continuous mental states are thwarted by death whereas this cannot be the case for beings who lack continuous mental states.[77] Dunayer responds by noting that all non-human animals undertake future-oriented actions, which may suggest her unstated claim that these actions cannot be explained without non-human animals having future-oriented desires.[78] Dunayer also argues that the present point of Singer’s is moot because continued existence does not, in fact, fulfill the myriad desires of many human animals, as many of these desires are frustrated.[79] Thus, Dunayer concludes that Singer is inconsistent because he holds that it is moral for non-human animals to be killed and replaced with new non-human animals because they lack future-oriented long-term goals, but he does not hold this view with respect to human animals who do not have many future-oriented long-term goals.[80] From the foregoing, it should be clear that Dunayer’s analysis adds little, if anything, to Francione’s. Moral AgencyDunayer objects to the view that since non-human animals lack the capacities to have duties to others and to enter into social contracts, they should[81] not have legal rights.[82] Dunayer responds to this view by arguing that many human animals lack those capacities so it is contradictory to deny non-human animals legal rights on that basis without doing the same to human animals.[83] The same is true of the capacity and political power to make laws.[84] Dunayer notes that, in the past, law makers of European ancestry have chosen to extend [presumably on moral grounds] basic legal rights to humans of African ancestry, and male law makers have extended those rights to women.[85] Again, Dunayer states that many human animals who are mentally challenged cannot participate in law making but they are nevertheless granted legal rights. She concludes that human animals – who have the might to make laws – should likewise extend basic legal rights to non-human animals.[86] Moreover, Dunayer asserts that animal rights advocates seek laws that would prevent non-human animals from being exploited or otherwise harmed by human animals.[87] She states that animal rights advocates intend to abolish the domestication of non-human animals, allowing them to live outside of human society in freedom within their native environments.[88] Shortly following this claim, Dunayer argues that the status of non-human animals as legal property is a social and legal construct.[89] She then rhetorically suggests that human animals ought to extend justice to non-human animals[90] and, given the preceding context, this in turn suggests that the legal property status of non-human animals should be abolished. Dunayer concludes by suggesting that the sole criterion for legal rights should be sentience[91], and this – given the context – presumably includes the right not to be property. She does all of this without any reference to Francione’s work. Regarding the claim that since non-human animals are morally inferior to human animals they should not have rights, Dunayer objects by offering evidence that it is solely the latter who undertake immoral actions.[92] For example, “it’s humans who needlessly hurt and kill.”[93] “It’s rare for nonhuman predators to unnecessarily prolong killing.”[94] “For mere convenience and taste, consumers eat the remains [of non-human animals who have been killed for profit].”[95] Similarly, Dunayer cites many more examples that show how non-human animals act morally[96], including the case of two experiments, the first of which involved humans who falsely believed they were giving other humans electric shocks for failing to answer questions correctly.[97] Most of the humans complied with the order to administer the shocks that they believed were real and excruciating while, in a second experiment involving rhesus monkeys, most of the monkeys refused to shock another monkey despite the fact that doing so entailed that they would not be provided with adequate food.[98] Dunayer notes that the monkeys were more moral than the humans because the monkeys exhibited altruism at considerable expense to themselves whereas the humans did not.[99] Regarding all of this, she makes no reference to Francione’s work. Furthermore, Dunayer rhetorically suggests that if the dubious claim that non-human animals do not consciously make moral choices were true, that would be irrelevant because many human animals who are entitled to basic rights likewise do not make conscious moral choices.[100] Also, she states that in the relatively few cases in which non-human animals cause needless harm to others, they might not be aware that their actions are needless and harmful.[101] Dunayer argues that human animals who are incapable of making autonomous moral choices are not held accountable for any harm that they cause to others, and she rhetorically suggests that the same should be true of non-human animals.[102] As before, Dunayer fails to cite Francione. Also as before, Francione discussed precisely the same issues surrounding moral agency much more effectively than, and four years prior to, Dunayer. Francione observes that many philosophers, from the ancient Stoics to Immanuel Kant to John Rawls, hold that human animals have no moral obligations to non-human animals and the latter can be excluded from the moral community because they, unlike humans, have no sense of justice and cannot respond to moral obligations or claims of right.[103] Francione describes this theory of moral agency as one of reciprocity, as it states that since the first group cannot respond morally to the second group, the second has no obligations to respond in this way towards the first.[104] Francione observes that the first of variant of this theory, started by the Stoics, defines “reason” such that only human animals are rational and states that only rational beings can participate in a community created by rational beings and understand the requirements of justice.[105] Kant, agreeing with and building upon this view of the Stoics, argues that rational humans can only have moral duties to other rational beings.[106] Likewise, Francione further notes Rawls’s view that only those who are capable of having a sense of justice (or a desire to act on the principles of justice) are included within the moral community, and non-human animals do not possess this capacity.[107] Francione also notes Carl Cohen’s view that non-human animals are incapable of responding to or even experiencing moral claims, so they can be excluded from the moral community.[108] The second variant of the reciprocal theory of moral agency that Francione calls attention to is social contract theory, first formulated by the ancient Epicurean philosophers and continued by Thomas Hobbes and Rawls. Francione describes this theory as one that determines the morality of actions by constructing a hypothetical contract between those who are capable of making agreements with each other in order to govern their own behavior.[109] Francione notes that social contract theory maintains that human animals do not have any moral obligations towards non-human animals because the latter are incapable of making or responding to moral claims, and are thus incapable of helping to form a social contract.[110] In particular, Francione notes that the Epicureans held that only humans, who are alone capable of making contacts to avoid causing suffering to others, are subject to justice.[111] Likewise, Francione describes Hobbes’s view that since non-human animals cannot make social contracts due to their lack of capacity for abstract language, they cannot be subject to the only thing that makes justice possible; the social contract.[112] Francione observes that Rawls argues that the social contract consists of rules that rational beings would decide upon if they knew they were going to live within a certain society but were ignorant of who they would be or what position they would have in that society, something Rawls notes that non-human animals are incapable of.[113] Following feminist thought, Francione objects to the above two variants of the reciprocal theory of moral agency by arguing that its assumption that moral rights and duties arise from a hypothetical contract between rational individuals is questionable, given the fictitious and ubiquitous nature of these contracts.[114] Furthermore, like Dunayer four years later, Francione argues that there are many human animals who are incapable of participating in the aforementioned kind of social contract due to their not being able to respond to or exercise moral claims.[115] This suggests that since certain human animals are not excluded from the moral community due to their inability to reason about moral choices or enter into social contracts, consistency demands that non-human animals should not be so excluded either. Francione argues that, for purposes such as deciding whether one has a legal guardian appointed who makes choices on one’s behalf or, conversely, one is allowed to make a legally binding contract, the ability to make moral claims or respond to these claims is relevant.[116] Francione further argues, however, that for the purpose of deciding whether a human should be treated exclusively as a resource, abilities related to moral agency are entirely irrelevant.[117] “For purposes of not being treated as a resource, as the property of another, as a being without morally significant interests, there is no difference between a human who is capable of making a contract and an insane human [or “normal” non-human animal] who does not understand what a moral or legal obligation is.”[118] More than this, Francione responds to the view of Peter Carruthers, who not only argues that non-human animals have no moral status due to their not being able to formulate a social contract, but also addresses the objection that it is inconsistent to treat human and non-human animals (who both lack the rational agency required to participate in a social contract) differently.[119] Francione explains and refutes Carruthers’s view[120], but my point here is merely that Francione’s discussion of moral agency is much more nuanced and well argued for than Dunayer’s. Nevertheless, it is clear from the foregoing that Dunayer borrows key arguments and conclusions from Francione. Ending the domestication[121] and abolishing the property status of non-human animals based upon the fact that they are sentient alone is the core theme of Francione’s work and Dunayer picks up on this. Dunayer’s references to “needlessly” and “unnecessarily” killing and otherwise harming non-human animals for “mere convenience and taste [enjoyment]” contain elements of Francione’s thesis in Introduction to Animal Rights, very briefly summarized as follows. Francione argues that the majority of human animals contradict themselves because they both accept the humane treatment principle – which says that unnecessary suffering should never be inflicted upon non-human animals but, in cases of true conflict or emergency, the interests of human animals may be given preference – and they undertake activities which violate that principle; subjecting non-human animals to suffering for entirely unnecessary reasons such as amusement, pleasure and convenience—most notably due to the consumption of animal products. In order to avoid this irrational contradiction, Francione argues that one should abide by the principle of equal consideration of interests, which says that similar interests ought to be treated similarly. For example, if the basic right not to be property protects the interests of human animals, then the same right should protect the same fundamental interests of non-human animals. Thus, Francione concludes that the property status of non-human animals ought to be abolished, and this entails that all institutionalized animal exploitation – including their being bred and domesticated[122] – should likewise be abolished and not merely regulated.[123] Francione argues that the sentience of non-human animals alone is sufficient for their having interests, and thus being subject to the principle of equal consideration of interests, because their capacity to suffer entails an interest in their not suffering[124], and they “like humans, have an experiential welfare in the sense that things can go better or worse from them depending on whether their interest in not suffering is respected, and on whether other interests they have as sentient beings [such as the interest in continuing to have an experiential welfare by remaining alive and sentient] are facilitated or frustrated.”[125] In addition to appropriating the above mentioned aspects of Francione’s theory, Dunayer’s discussion of the history of rights is also found in Francione’s Introduction to Animal Rights. Francione notes that the concept of rights was created to safeguard the interests of rich white male human landowners but eventually was extended to other humans as a result of better application of the principle of equal consideration of interests, something that Francione argues ought to happen to non-human animals.[126] Similar to Dunayer in 2004, Francione in 2000 argued that human animals who are incapable of devising (or making legal or moral) rights or even understanding (and thus being aware of) the concept of rights nevertheless are accorded rights, and the same should be true of non-human animals.[127] Also like Dunayer, Francione concluded that the domestication and breeding of non-human animals must be abolished, as failing to do so perpetuates their property status.[128] Francione argues that non-human animals ought not to be brought into existence (by the human animals who breed and domesticate them) in the first place.[129] He observes that human animals manufacture “conflicts” between themselves and other animals.[130] For example, after bringing billions of non-human animals into existence every year and otherwise treating them as property, many human animals then consider their obligations to these other animals, such as “balancing” their own trivial interests in eating animal products against the vital interests of those eaten.[131] Francione notes that the interests of non-human animals are always violated because the outcome of the “balancing” process has already been predetermined by the status of non-human animals as beings who can be exploited exclusively as resources, and who are brought into existence solely for that purpose.[132] Conversely, Francione concludes that “If we recognize that animals have a basic right not to be treated as our resources, and we abolish those institutions of animal exploitation that assume that animals are nothing but our resources just as we abolished human slavery, we will stop producing animals for human purposes and thereby eliminate the overwhelming number of these false conflicts in which we ‘balance’ human and animal interests.”[133] Obviously, if this were done, non-human animals would be free to live undisturbed within their native environments. Again like Dunayer, Francione gives evidence and accounts of non-human animals acting morally and having moral sentiments.[134] Dunayer even uses the same example of discovering more altruism in monkeys than humans via electric shock experiments, with the difference that Francione’s example involves macaque monkeys being shocked whereas Dunayer’s example involves rhesus monkeys.[135] Inherent ValueDunayer summarizes Tom Regan’s view that all “subjects of a life” should have legal rights and equal moral consideration, citing his view that anyone with an experiential welfare is a subject of a life.[136] Dunayer notes that, on the face of it, this should entail that Regan holds that all sentient beings are subjects of a life because, as sentient beings, they all have an experiential welfare by definition.[137] Yet, Dunayer also notes Regan’s view that subjects of a life must have various cognitive attributes beyond mere sentience, and that Regan is uncertain about whether fishes, reptiles and amphibians are subjects of a life but he nevertheless assumes (without knowing) that they are conscious.[138] Dunayer responds by referring to evidence that all animals are conscious.[139] Up to this point, she does not mention Francione. Dunayer argues that, although Regan claims to hold that at least some non-human animals have inherent moral value[140], he nevertheless does not accord these animals equal inherent value because he maintains that a human animal should be chosen over a non-human animal in situations where both are endangered but it is only possible to save one.[141] Dunayer states that Regan’s reason is that most human animals have more numerous and varied sources of satisfaction than non-human animals do.[142] Moreover, Dunayer objects to the conclusion in Regan’s lifeboat example (in which one dog and four humans are stranded with only enough food to feed four) that the moral choice is to throw the dog overboard since the dog supposedly has less satisfaction in life compared to the humans.[143] She objects on the grounds that there may be more opportunities for satisfaction in a dog’s life because dogs, for example, have a much richer experience of the sense of smell.[144] Dunayer asserts that Regan’s view is speciesist because it assumes that the lives of non-human animals generally have less value than those of human animals.[145] Moreover, Dunayer rhetorically suggests that she objects to Regan’s view that it is morally acceptable to save the life of one human over the lives of one million dogs and states that Regan is inconsistent due to his previous claim that all subjects of a life have equal moral rights.[146] She argues that Regan’s view, that painlessly killing innocent (but not guilty) beings is immoral, is inconsistent with Regan’s claim that at least some non-human animals have a right to life.[147] Dunayer comments “If Regan believes that humans have a greater right to life than other animals because they have more ‘opportunities for satisfaction,’ then, to be logically consistent, he must also believe that the most intelligent human in the boat has a greater right to life than any of the other humans.”[148] Moreover, Dunayer cites Sapontzis’s view that when egalitarian views replace hierarchical views (such as Regan’s) this leads to moral progress.[149] Again, regarding the abovementioned points, Dunayer does not refer to Francione. Dunayer then claims that Francione, like Regan, also expresses the speciesist view that the lives of non-human animals have less value than those of human animals because, as described by Dunayer, Francione contends that the intuition of most human animals is that – when nothing is known about a human animal and a dog animal except their respective species – the life of the human animal should be saved over that of the dog animal.[150] Dunayer quotes Francione thus: “We regard it as morally preferable to choose the human over the animal [sic].”[151] Dunayer states that, according to Francione, “Saving the human accords with”[152] (Dunayer’s words) “our absolute preference for the human”[153] (Francione’s words). In response to this statement, Dunayer retorts that she neither regards saving the human to be morally preferable nor does she have an absolute preference for the human.[154] Conversely, she argues that saving the dog animal is as moral as saving the human animal because all sentient beings are equal.[155] Dunayer claims that Francione compares a doctor’s decision to give an otherwise healthy human the only available pint of life-saving blood instead of giving it to a terminally ill human – with a decision to save the human in all situations in which one is forced to choose between the life of a human and the life of a non-human animal.[156] Dunayer responds by arguing that, while life expectancy may be relevant to choosing between the lives of two individuals, species is not, so she objects that Francione’s analogy is inappropriate.[157] Furthermore, Dunayer claims that Francione holds that “Non-human emancipation wouldn’t mean that…”[158] (Dunayer’s words) “we will no longer be required to save the human”[159] (Francione’s words). To this, Dunayer retorts: Required to save the human? Yes that view is compatible with nonhuman emancipation. However, it isn’t compatible with animal equality. It’s speciesist. We aren’t morally obligated to choose the human any more than we’re morally obligated to choose the dog. It would be perfectly moral to flip a coin.[160] MisrepresentationFirst of all, regarding the concept of equal inherent value, Francione explains that the value of a being[161] is inherent or intrinsic when it goes beyond the value obtained by others in using that being as a resource.[162] In other words, a being with inherent value is valuable in him or herself, independent of that being’s individual characteristics and value as a resource to others.[163] Not only does Francione argue that having inherent value is the minimum condition required to be a member of the moral community and this entails the right not to be property, but he also argues that all beings with inherent value possess it equally.[164] For example, for the purpose of deciding whether one being who is less “intelligent” than another should be used exclusively as a resource, both beings cannot be so used because both have equal inherent value.[165] This is Francione’s view, and it overlaps somewhat with Regan’s view, but with very significant differences. Francione states: There are those who agree that we ought to accord some inherent value to animals but maintain that animals have a lesser degree of inherent value and that this difference justifies our treating them as the resources of humans. But this is no different from stating that women have less inherent value than men, or that people of color have less inherent value than white people. … To say that a human has moral significance but has less inherent value than other humans is self-contradictory. The being who has less inherent value will necessarily be at risk of being treated as a thing. Similarly, if animals have less inherent value than humans, then their interests may be ignored when it is in our interests, and they risk being excluded entirely from the moral community and treated as things—exactly as they are treated now. … If we accord equal inherent value to all humans, irrespective of their characteristics, and we deny that same value to animals, then our failure to apply the principle of equal consideration is arbitrary and unjustified.[166] Francione observes Richard Sorabji’s view that Regan holds that various cognitive attributes may be relevant to a being’s inherent value, but Francione argues that Sorabji’s interpretation of Regan is misguided—in part due to the confusing nature of Regan’s argument. Francione clarifies the issue by referring to Regan’s lifeboat example: “Although death is a harm to the dog, Regan argues, death would be a qualitatively greater loss, and, accordingly, a greater harm, to any of the humans … It would, in Regan’s view, be morally obligatory to kill the dog. Further, Regan claims that even if the choice were between a million dogs and one [human] person, it would still be obligatory under rights theory to throw the dogs overboard.”[167] Francione’s crucial point of distinction is this: With respect to genuinely exceptional or emergency circumstances in which it is absolutely impossible to avoid the death of at least one right-holder (who has equal inherent value) and a choice must be made regarding who will live and who will die in order to avoid the deaths of all, Francione is unequivocal: the human animal may be preferred and this is consistent with the theory of animal rights. The alternative option, however, remains open for Francione; the non-human animal may also be preferred and this too is consistent with the theory of animal rights. Although none of the examples in which Francione discusses preferring the non-human animal’s interests (in emergencies) involve the case of not having any knowledge about the human and non-human animals except their respective species, Francione leaves this option available: To the extent that in such situations Regan would require choosing the human interest over the animal interest based on a difference in inherent value … then his resolution of the lifeboat matter is problematic and relies on ‘perfectionist’ theories that he purports to reject.[168] Francione’s theory begins with two observations, one of which is that the majority of human animals (rightly or wrongly) hold the belief that human animals morally should always be given preference over non-human animals in situations of genuine emergency. Dunayer’s charge that this violates “animal equality” and is thus speciesist elides an important distinction. Francione’s theory entails that the action of always saving the human in emergency situations is consistent with animal rights theory, as is the alternative action of always saving the non-human animal. Conversely, the motivation behind either the act to save the human or the act to save the non-human will always be morally arbitrary to a certain extent and will always be morally problematic and, as such, it does not tell us very much about moral decision making and therefore cannot be used to morally condemn anyone who makes either choice in any instance. As Francione remarks, if the emergency involved choosing between the lives of two humans, the individual making the choice might always decide on the basis of whether or not one of the humans was a family member and believe that doing so is an absolute moral obligation. Suppose that the individual making this choice knew that one of the individuals was a member of her or his immediate family, but did not know which particular family member it was, and did not know anything about the other human. If the life of the unknown immediate family member were chosen to be saved, would the individual who made that choice be “familist” in the same way that those who harm others on the basis of race or species are racist and speciesist? Would the individual who chooses to save his or her family member be violating “human equality,” or the moral principle of considering the similar interests of all humans similarly? The reason why the answer to these questions is “no” is that all such lifeboat or burning house scenarios involve morally arbitrary and morally problematic choices from which moral conclusions cannot be drawn, and this is Francione’s point. Feminist ethicists have long objected that the requirement of utilitarian theory to abstractly view each individual merely as a carrier of utility among many blank, morally equivalent individuals ignores the value of significant relationships of interdependence. Similarly, Dunayer’s view that flipping a coin would treat all parties in emergency situations equally may be true but doing so would ignore several factors[169] that Francione draws attention to and – due to unusual nature of the circumstances – failing to flip a coin would not entail that one being has less inherent value than the other. Thus, Francione’s observation that most humans have the intuition that, in emergency situations, the life of a human should always be saved over that of a non-human animal does not entail – contrary to Dunayer’s claim – that the lives of non-human animals have less inherent value than those of human animals. One only need read Francione’s text to clearly understand this point. As stated above, Francione does not maintain that preferring the human is morally required and, I would add, this point of Francione’s entails that it is also morally acceptable and consistent with animal rights theory to prefer the interests of the non-human animal in emergency situations. This is in fact what Francione says: I do not share Regan’s position that it is some sort of empirical fact that death is a greater harm to humans than to animals, or that we are obliged to save one human over a million dogs. In situations of true emergency, we may be justified in saving the human over the animal, but we may also be justified in saving the animal over the human.[170] Whatever choice I would make in such a situation is irrelevant to the validity of the argument that according animals moral status means that we must apply the principle of equal consideration to them and extend to them the basic right not to be treated as things. If my argument is valid, then even if my choice of my child over the dog [or another’s human child] were inconsistent with my argument, that would say something about me and my moral inconsistency but nothing about the validity of my argument.[171] From the above, it is clear that Dunayer seriously misrepresents Francione’s views on this matter. Again, just as our choice to save our own child (or an unknown immediate family member of ours) over that of someone else’s in an extreme emergency situation is not “familist” or contrary to the principle of equal consideration of interests, the choice to save a human child over a dog (or vice-versa) in an extreme emergency situation is likewise not speciesist and contrary to the principle of equal consideration of interests.[172] Francione makes this clear while Dunayer’s false depiction, out-of-context quotations and related objections obscure it. In this light, Dunayer’s objection that Francione compares the choice to save a life based upon life expectancy with the choice to save a life based on species membership also misrepresents Francione’s view. Francione’s use of these two examples is not to suggest that they are analogous in all respects, but merely to point out one and only one commonality between them. Namely, just as the doctor’s decision to save a patient with better prospects within an emergency situation does not entail that it is morally acceptable for the doctor to conduct vivisection upon terminally ill patients, the decision of most human animals to save a human over a dog within an emergency situation likewise does not entail that it is morally acceptable to conduct vivisection upon dogs.[173] This is the only point of comparison. In both cases, Francione states that, since the decisions involved are necessarily arbitrary, morally unsatisfactory and incompatible with satisfying general moral principles (such as anti-speciesism or the principle of equal consideration of interests), neither is speciesist nor prejudicial. This is so because it is impossible to draw moral conclusions from inherently morally problematic, extreme emergency situations.[174] Thus, Dunayer has taken Francione’s statements out of their crucial context and her charges of speciesism are therefore inapplicable. AppropriationLike Dunayer, Francione objects to Regan’s view that one is morally required to kill one dog or one million dogs in order to save the life of one human but, unlike Dunayer, Francione correctly explains why Regan comes to this questionable view[175], as I will discuss below. Also like Dunayer, Francione observes that Regan maintains that human and non-human animals have moral[176] rights and equal moral value despite their many differences.[177] Francione cites Regan’s requirement that subjects of a life must have various cognitive abilities beyond sentience, Francione lists these same abilities that Dunayer lists and, also like Dunayer, Francione observes that only “normal” non-human mammals over one year of age are subjects of a life according to Regan.[178] Francione argues that although certain human and non-human animals both lack the qualities required to satisfy Regan’s definition of “subject of a life,” they are nevertheless sentient, this entails an interest in not suffering or experiencing pain and they therefore have an experiential welfare.[179] Moreover, Francione objects that non-mammals, including fishes, do possess – contrary to Regan’s claim – intelligence, sentience and an experiential life.[180] Francione rejects Regan’s rights theory, in part, because its multiple criteria for being a subject of a life and its other are overly complicated.[181] Instead, Francione argues that the principle of equal consideration of interests directly entails the right not to be treated property and the abolition of non-human animal exploitation.[182] Francione made these arguments four years prior to Dunayer. Francione argues Regan maintains the position that, in emergencies, one is morally required to kill one dog or one million dogs in order to save the life of one human because Regan assumes that non-human animals are cognitively inferior to human animals and, accordingly, that death constitutes a greater harm to the latter.[183] As quoted above, not only does Francione reject Regan’s view that having Regan’s list of traits required to be a subject of a life is necessary for moral significance, Francione also rejects Regan’s view that death harms a human animal more than one or one million non-human animals.[184] Francione cites his reasons for this rejection as appearing in his 1995 article “Comparable Harm and Equal Inherent Value: The Problem of the Dog in the Lifeboat,”[185] an article that Dunayer is familiar with.[186] In 1995, after analyzing Regan’s text, Francione thoroughly explained and argued that Regan in no instance maintains that inherent value or being a subject of a life admit of degrees.[187] Importantly, however, Francione also observes Regan’s view that the concept of harm does admit of degrees. That is, Regan says the same harm (e.g. death) inflicted upon two individuals may have different effects upon and be qualitatively different for each individual depending, not on the qualities required to be a subject of a life, but on the possession of special abilities or virtues such as those required for higher mathematics or artistic excellence. The problem with this, argues Francione, “is that it involves a different analysis from that involved in the formation of Regan’s theoretical postulates.”[188] In particular, the first analysis is that of Regan’s general theory and this analysis requires Regan’s postulates of equal inherent value and his subject-of-a-life criterion to exclude all characteristics (such as the abilities and virtues associated with higher mathematics or artistic excellence) except those traits that constitute subject-of-a-life status if Regan is to claim, as he does, that all subjects of a life have the right not to be used merely as a means. The second analysis is that of Regan’s lifeboat example and this analysis requires that harm admits of degrees which, Francione argues, “may be the same as arguing that the being who is harmed less has an inherent value that is different from, and less than, the one harmed more. Indeed, in Singer’s theory, the different quality of experience is used primarily to determine the relative value of different beings and not to differentiate the varying degrees of harm suffered by beings with the same inherent value [as Regan attempts, but fails, to do].”[189] Thus, Francione concludes that the two analyses used by Regan are inconsistent with one another; the first concerns “the inclusion of [non-human animals] within the class of rightholders” whereas the second “concerns a very different context—the resolution of a conflict between two rightholders.” For Regan to avoid this inconsistency, Francione suggests dropping Regan’s attempted solution to the lifeboat example and the second analysis that requires it. Otherwise, argues Francione, the speciesist conclusion[190] may follow that “To the extent that Regan links even basic rights … with the possession of certain ‘virtues,’ he allows for differential consideration of equal inherent value. Such a differential consideration … might very well mean that animals will continue to lose in virtually every situation in which their ‘rights’ were found to [genuinely] conflict with those of humans.”[191] Thus, Dunayer’s objections nine years later that Regan fails to accord non-human animals equal inherent value, Regan accords non-human animals less value less due to the traits they lack and this is speciesist and inconsistent with Regan’s claim that all subjects of a life have equal rights are substantially similar to Francione’s conclusions, although the main arguments Dunayer uses to arrive at those conclusions differ significantly in their depth and accuracy from Francione’s. Other correlates between Francione in 1995 and Dunayer in 2004 include Dunayer’s objection that Regan’s view of killing the innocent being wrong is inconsistent with his other claims, and Francione’s discussion of Regan’s view of comparable harm providing the foundation for two principles—principles that partly involve cases of innocent individuals being harmed in comparable or incomparable ways.[192] Also, Dunayer makes the same objection that Francione does regarding Regan’s view entailing that death is less harmful to less intelligent humans and, accordingly, the least intelligent human should be thrown out of a lifeboat containing humans only.[193] Lastly, like Dunayer, Francione cites Sapontzis’s view that Regan’s notion of comparable harm implies a human-dominated hierarchy.[194] Except where explicitly noted above, Dunayer does not credit Francione for any of these ideas. Appropriation of Legal TheoryDunayer in 2004Dunayer notes that existing law does not give non-human animals any meaningful protection, only humans are legal persons who have legal rights and non-human animals are legal property that does not have legal rights.[195] Dunayer observes, “Some [non-human animal] cruelty statutes appear under the heading ‘Crimes against Property’ or ‘Property Destruction and Defacement.’”[196] and provides an example of someone who was charged under such a law for giving a cat owned by someone else needed medical treatment and a hysterectomy.[197] To the above, Dunayer attaches “As legal scholar and animal rights theorist Gary Francione has explained, instead of protecting nonhumans, the law protects human property interests in nonhumans.”[198] Dunayer then gives three examples of this point, illustrating that harm to non-human animals is legally construed as violating the legal property rights of human animals, not the fundamental moral rights of non-human animals.[199] Dunayer notes that, under existing law, the market solely determines the value of non-human animals and they are treated as being replaceable.[200] Further, she discusses some legal cases of non-human animals who were used for companionship being killed by human persons who were not their legal owners and notes how damages for emotional distress resulting from the loss of personal property were awarded to owners by the courts.[201] Dunayer comments, “The judges recognize the importance of nonhuman companions to their owners. They treat the nonhumans who died as a special class of property, but still property.”[202] Dunayer notes how “wildlife conservation” laws such as the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA) do not accord individual non-human animals rights, but merely give some protection to the group or species to which they belong.[203] She notes how such laws set limits on killing and otherwise harming non-human animals but do not prohibit them outright.[204] Moreover, these limits are set to benefit human animals, not non-human animals.[205] That is, Dunayer notes that the purpose of “wildlife conservation” laws is to sustain and maximize the efficiency of non-human animal exploitation.[206] She correctly states that the ESA sets limits on killing non-human animals “because of their ‘esthetic, ecological, educational, historical, recreational, and scientific value’ to U.S. citizens, not because non-humans have any rights or value of their own.”[207] Contrary to this state of affairs, Dunayer advocates protecting individual non-human animals with rights.[208] Dunayer notes how being held as property is equivalent to being enslaved[209] and that state [non-human animal anti-]cruelty statutes endorse and perpetuate the slavery of non-human animals.[210] In particular, Dunayer notes that these statutes fail to prohibit various forms of non-human animal exploitation, but merely regulate them.[211] She states: “In some states, even overworking a nonhuman [animal] isn’t punishable unless the nonhuman [animal] was ‘seriously’ or ‘grossly’ overworked.”[212] Importantly, Dunayer asserts that the legal property status of non-human animals entails that non-human animal anti-cruelty statues exclude acts of exploitation that are the most cruel.[213] Making a related but different point than the above, Dunayer states “As Francione shows in Animals, Property, and the Law, cruelty is legal if it’s business as usual.”[214] This quotation appears to refer to why many acts of exploitation are excluded from statutes; namely, because they involve “business as usual” (in Dunayer’s words) or are part of larger exploitative institutions that are themselves regarded as profitable, legitimate and generally socially acceptable (Francione’s description). In making this “why” point, Dunayer inserts a footnote citing sections in Animals, Property and the Law that not only refer to why the exclusions exist (including, but not limited to, the abovementioned reason), but the sections Dunayer cites also refer to the existence of the exclusions themselves and their nature.[215] After making the above quoted point in her text and supporting this point with a footnote referring to Francione that goes beyond this original point, Dunayer returns to the related but different point I address in the preceding paragraph that “By various means, cruelty statutes leave the most common forms of cruelty untouched.”[216] Then, without citing Francione, she discusses the nature of the exemptions, including the fact that they exempt various exploitative institutions.[217] Then, returning to the point she cites from Francione about exemptions in statues for “business as usual,” Dunayer gives an example of such a statute and correctly states that they do not prohibit cruelty and the like[218], but “As Francione emphasizes, the point is to prohibit aberrant mistreatment, torture and cruelty—mistreatment that isn’t a customary part of speciesist exploitation.”[219] These academic acrobatics involving the way Dunayer cites Francione’s work may give the casual reader the impression that adequate citation is being provided. At this point, Dunayer returns to discussing the nature of the exclusions found in non-human animal anti-cruelty statutes. She lists a few more examples of these statutes and then states that they primarily give minimal protection to non-human animals who are used for companionship.[220] Minimal, because most cases are not prosecuted, it is difficult to win convictions (since many qualifications, such as intent to harm, must be met) and penalties are insignificant.[221] Lastly, Dunayer reiterates that the statutes do not abolish, but merely regulate the exploitative industries and this is exemplified by the breeding of non-human animals for the purpose of enslavement.[222] She notes that non-human animal exploitation industries would not exist without humans breeding them since breeding makes these industries practical.[223] Summing up her discussion of non-human animal anti-cruelty statutes, Dunayer says “As Francione has stated, cruelty statutes apply to a ‘relatively minuscule’ amount of cruelty and don’t provide non-humans with ‘any meaningful level of protection.’ Cruelty statutes deal almost exclusively with sadism or anomalies, egregious neglect—because such abuse doesn’t further the use of nonhumans as property.”[224] Similar to non-human animal anti-cruelty statutes, Dunayer notes how the Animal Welfare Act (AWA) excludes most non-human animals such as all non-mammals, rats, mice and animals who are used in vivisection for the purpose of making the exploitation of animals who are used for food more efficient.[225] She notes that, for the animals the AWA does cover, virtually any form of exploitation is permitted.[226] Dunayer states: “The AWA is a sham. It legitimizes the breeding, sale, purchase, imprisonment, torture, and murder of nonhuman beings.”[227] Likewise, Dunayer notes that the Humane Methods of Slaughter Act (HMSA) legitimizes the killing of non-human animals who are used for food.[228] She notes how it excludes all non-mammals.[229] Again, it permits virtually any form of exploitation to occur.[230] Dunayer notes how the HMSA requires that non-human animals be killed “humanely” and goes on to describe the ways in which they are killed, rhetorically suggesting that such killing is “inhumane”[231] and explicitly stating that it is horrifically cruel.[232] She further notes that the HMSA is poorly enforced.[233] Lastly, “The HMSA sanctions mass murder. … Worldwide, the law categorizes nonhumans as human property. … Touted as protecting nonhumans, ‘animal’ laws that authorize exploitation actually perpetuate abuse.”[234] Dunayer discusses non-speciesist alternatives to the above laws. First, she states that most humans would agree that the law should penalize those who are guilty and protect those who are innocent.[235] Regarding the activity of humans surviving by growing plants and this inadvertently causing non-human animals to be killed or otherwise harmed, Dunayer asserts that the humans who grow plants are innocent.[236] Then, she says that humans who kill in self-defense are likewise innocent.[237] The juxtaposition of these two related points suggests to me, although Dunayer does not state, that humans killing in self-defense and humans inadvertently killing non-human animals as a result of plant agriculture involve killings that are merely unintended and unwanted side-effects of actions that are morally acceptable. Next, Dunayer asserts that it is immoral to harm non-human animals “for any other reason beyond immediate, direct necessity,”[238] which killing in self-defense and inadvertent killing that results from plant agriculture both qualify as.[239] Conversely, Dunayer asserts that when humans who knowingly participate in practices that cause “needless” suffering and death such as egg farming, they are guilty.[240] She notes how present law regarding non-human animals rewards these guilty humans and fails to penalize them.[241] Dunayer suggests that these laws should be abolished and replaced with laws that respect the rights of non-human animals.[242] Dunayer notes that existing laws that protect the rights of human animals are not disregarded if their violation would result in benefiting others.[243] “Utilitarian calculations such as cost-benefit analysis come into play only within a context that respects those [human] rights.”[244] This suggests Dunayer’s view that, with respect to non-human animals, utilitarian calculations should only come into play in a context that respects non-human animal rights. In particular, Dunayer proposes that the U.S. Congress pass a new constitutional amendment that declares all or some non-human animals to be legal persons, not legal property.[245] If this were done, Dunayer states that the existing 13th Amendment to the U.S. Constitution prohibiting slavery would apply to non-human animals.[246] She notes, however, that a new amendment of this sort would require the support of most of the public in order to succeed.[247] “Therefore, no amendment emancipating most or all nonhuman [animals] will be possible until many more Americans reject animal-derived products and endorse nonhuman [animal] rights.”[248] Dunayer favors passing a new constitutional amendment[249], but she also proposes the alternative option that the courts could rule that non-human animals are legal persons.[250] She concludes that, based in popular support, the legal personhood of non-human animals, and thus the abolition of their legal property status, would result in their being “liberated from exploitation and abusive confinement.”[251] They would be liberated from circuses, farms, “shelters” that kill non-human animals and breeding institutions.[252] “The ‘production’ of nonhuman [animals] for vivisection, slaughter, and any other purpose (including pet-keeping) would cease. … Non-‘domesticated’ captives would be set free if they could thrive without human assistance (after any necessary rehabilitation) and if appropriate habitat existed.”[253] “In the case of dogs, [personhood] would mean a rapid decline in the numbers of dogs, whom humans could no longer legally breed, sell, or otherwise subjugate and exploit for any purpose, including as ‘police dogs’ or ‘seeing eye dogs.’”[254] Except where explicitly mentioned above, Dunayer makes all of the above statements without citing Francione. She states that personhood entails various rights.[255] Dunayer then objects: Gary Francione states “We are obliged to extend to animals [sic] only one right—the right not to be treated as the property of humans.” I disagree. Freedom from enslavement (property status) is the prerequisite for legal rights. In Paola Cavalieri’s words, property status is “the basic obstacle” to nonhuman rights; freeing nonhumans from that status is the point of departure, not arrival. With regard to humans, Francione calls the right not to be property the “grounding” for other rights. In my view, the same applies to nonhumans.[256] Moreover, Dunayer states that “Francione doesn’t advocate that nonhumans have” (Dunayer’s words) “the same legal rights (constitutional or otherwise) that we accord humans” (Francione’s words).[257] Dunayer, disputing this idea, advocates that non-human animals should have all constitutional or other rights that are applicable and this would automatically flow from the legal personhood status.[258] She is careful to note, however, that “Many constitutional rights aren’t relevant to nonhuman [animals]”[259] and gives the examples of the right to trial by jury, freedom of religion and freedom of speech.[260] In addition to the right not to be property, Dunayer maintains that non-human animals ought to have the constitutional rights to life, liberty (including bodily integrity and physical freedom) property (for example, their eggs and nests in undisturbed forests) and equal protection of the law.[261] Dunayer holds that after the property status of non-human animals has been abolished, that is “after emancipation,” most would live free and not be “domesticated.”[262] In this event, when free-living animals such as geese, squirrels and bears randomly come into contact with humans, Dunayer says the non-human animals should have legal rights that prevent the human animals from interfering with them.[263] She also provides a list of legal prohibitions that would stem from the rights to life, liberty and property.[264] Dunayer objects that although Francione’s single right not to be property would protect non-human animals from institutionalized exploitation, such as that found in the government sanctioned commercial hunting industry, the right not to be property would not prevent individual human hunters from hunting in non-institutionalized contexts.[265] In order to prevent that, Dunayer claims that the additional right to life would be required.[266] Dunayer notes how Francione equates the right not to be property with the right not to be treated as a resource[267] and objects: If I murder a human out of anger, I haven’t treated them as a resource. Nevertheless, I’ve violated their right to life. Nonhuman rights too, can be violated whether or not nonhumans are regarded as resources. When an exterminator murders all the wasps who live in a nest attached to a house, the wasps are viewed as pests, not resources. Their murder doesn’t involve any exploitation. [Therefore,] Wasps need a legal right to life.[268] Dunayer agrees with Francione that emancipation or abolishing the property status of non-human animals would end much of the suffering and death that non-human animals are currently subject to.[269] She notes, however, that doing so would not end conflicts between human and non-human animals that involve the use of land, water and human-constructed dwellings.[270] Dunayer maintains that when human animals kill non-human animals in these conflicts, it does not involve any exploitation but it nevertheless violates the rights of the non-human animals.[271] She notes that Francione advocates that the principle of equal consideration apply to all sentient beings and rhetorically suggests that this would entail much more than merely not treating non-human animals as resources.[272] That is, Dunayer contends that equal consideration would require that non-human animals have the rights to life, liberty (including physical freedom and bodily integrity) and property ownership.[273] Even with the right not to be property, without the other aforementioned three rights, Dunayer contends that non-human animals would still be killed, trapped, confined, battered, sexually assaulted, tortured and have their milk, hives, forests and so on stolen or destroyed by individual human animals acting outside of institutional structures.[274] Dunayer notes Francione’s observation that, after the property status of non-human animals is abolished, some human animals might still want to build homes in areas only occupied by non-human animals.[275] She rhetorically suggests that with only the right not to be property without the right to have territory or other property, it would be impossible to resolve territory conflicts between human and non-human animals.[276] Dunayer mocks Francione’s proposed resolutions thus: “We should ‘try’ to give the nonhumans equal consideration, make at least a ‘good-faith effort’ not to intentionally kill them, and, if necessary, ‘relocate’ them.”[277] Disagreeing with this, Dunayer asserts that non-human animals should always be subject to the principle of equal consideration, which is the necessary “first step to finding the most equitable solution to any conflict.”[278] Moreover, Dunayer asserts that non-human animals should never be relocated, and that they should never be killed except in extraordinary circumstances such as self-defense.[279] Dunayer claims that Francione holds the view that, “outside a context of exploitation,” the interests of human animals should take precedence over those of non-human animals in cases of conflict because non-human animals have less value than human animals for the purpose of resolving conflicts.[280] Dunayer claims that Francione categorically maintains that all sentient beings do not have the same value for purposes of resolving conflicts.[281] She claims that Francione holds that it may be permissible to consider traits such as human-like intelligence when the interests of human and free-living non-human animals conflict, and that the differences between them might justify differential treatment that favors the human animal.[282] For example, Dunayer cites Francione as contending that humans might decide to relocate mice in order to build human dwellings and this decision might be based upon the determination that mice care less about their home territory than humans do.[283] Dunayer objects that mice might care or “desire” or “value” their habitat more than humans are capable of knowing and that if mice were incapable of such conscious valuing they nevertheless may still need their habitat.[284] Dunayer charges that Francione contradicts a strong theme in his own work by balancing the interests of human and non-human animals in a way that is already predisposed towards favoring the former.[285] That is, Dunayer charges that even if both human and non-human animals both have the right not to be property, territory conflicts will always be resolved in favor of human animals unless non-human animals have the right to have property.[286] She notes that the same argument applies to Native Americans who were wrongfully displaced by Americans of European ancestry.[287] Other rights violated by the relocation of non-human animals include those to life, liberty and non-interference, the latter constituting “the essence of nonhuman rights.”[288] Francione in 1995, 1996, 1999, 2000 and 2002MisappropriationYears before Dunayer, Francione made the above observations and claims regarding legal theory applied to non-human animals. As noted, Dunayer does cite Francione in a few of these instances, but fails to do so for others. For Dunayer’s claims regarding the lack of legal protection, rights and personhood and the reality of the legal property status of non-human animals, see Part I of Francione’s Animals, Property, and the Law[289] and chapters three[290] and four[291] of Francione’s Introduction to Animal Rights. For Dunayer’s observations regarding the property status of animals as it relates to non-human animal state anti-cruelty statutes, see Part II of Francione’s Animals, Property, and the Law[292] and chapter three of Introduction to Animal Rights[293]. In particular, regarding Dunayer’s observations on the reasons why anti-cruelty statutes fail to protect non-human animals or accord them rights, such as regulating but not prohibiting various forms of exploitation, exemptions, ambiguous terms such as ‘seriously overworking,’ failure to prosecute, establishing mental intent to harm and insignificant penalties see the abovementioned sources[294] as well as the sections of Francione that Dunayer does cite.[295] For Dunayer’s observations regarding the law as it relates to the market value and replacability of non-human animals, cases involving emotional distress to humans whose “pets”[296] are harmed, and argumentation against the breeding of “pets,” see both chapters three in Francione’s Animals, Property, and the Law[297] and Introduction to Animal Rights[298]. For Dunayer’s claims on “wildlife conservation” laws see the Appendix of Francione’s Introduction to Animal Rights.[299] Like Dunayer, Francione also discusses the fact that the breeding of non-human animals, including but not limited to “pets,” is the root cause of their exploitation.[300] Francione made the same points as Dunayer regarding the property status of non-human animals in relation to the AWA, the HMSA, their lack of enforcement, their regulation and perpetuation of exploitation and the legal meaning of terms such as “humane”.[301] Like Dunayer after him, Francione argued that the inadvertent and unintentional deaths of non-human animals due to plant agriculture are not immoral as the intentional killings of non-human animals for their meat are immoral.[302] Like Dunayer, Francione argued that a human animal killing a human or non-human animal in genuine self-defense is not immoral.[303] Dunayer also parallels Francione in rejecting practices that needlessly or unnecessarily cause non-human animals suffering and death outside of extraordinary emergency situations.[304] Dunayer’s discussion of laws that protect human rights, utilitarianism and laws that fail to protect non-human animal rights reflects Francione’s views.[305] Admittedly, unlike Dunayer, Francione does not advocate passing a new Congressional amendment to the U.S. Constitution. Francione, however, originally argued: For the most part, the law reflects social attitudes and does not form them. This is particularly true when the behavior in question is deeply embedded in the cultural fabric, as our exploitation of animals undoubtedly is. As long as most people think that it’s fine to eat animals, use them in experiments, or use them for entertainment purposes, the law [congressional or otherwise, constitutional amendment or otherwise] is not likely to be a particularly useful tool to help animals. … Nonhumans will continue to be exploited until there is a revolution of the human spirit, and that will not happen without visionaries trying to change the paradigm that has become accustomed to and tolerant of patriarchal violence.[306] With respect to the time before this non-violent revolution, in which most humans think that it is morally acceptable to eat animal products, vivisect non-human animals, exploit them in circuses and so on, it is clear that Dunayer argues along very similar lines as Francione did two years earlier. With respect to the time after the paradigm shift that Francione speaks of, Dunayer fails to realize that in a vegan world in which a critical mass of humans already respect non-human animal rights, the law will inevitably begin to reflect the new status quo and recognize non-human animals as persons. Whether this takes the contrived form of a special new constitutional amendment, a court ruling or some other general recognition that non-human animals are no longer legal property, such legalities will happen as a matter of course after the societal shift in human consciousness. This is what Dunayer fails to realize when she focuses upon future constitutional amendments and future Supreme Court rulings. As Mohandas Gandhi wrote: No special legislation without a change of heart can possibly bring about organic unity. And when there is a change of heart, no such legislation can possibly be necessary.[307] Falsification?I will argue that, at the least, Dunayer grossly misinterprets Francione’s legal theory. The reader of this review, and of Francione and Dunayer’s writing, may judge as to whether Dunayer’s characterization of Francione’s views constitutes outright falsification. As quoted above, when Dunayer cites a line from Introduction to Animal Rights in which Francione says there is a moral obligation to only extend to non-human animals the one right not to be property, Dunayer inserts a “[sic]” notation – the Latin word meaning “thus,” indicating that the previous part of the quotation genuinely is an accurate depiction of the original text – in the middle of Francione’s statement. In this case, the words that appear prior to Dunayer’s “[sic]” notation are “We are obliged to extend to animals”. So, if Dunayer is using the “[sic]” notation correctly, she is flagging the fact that the words “We are obliged to extend to animals” really are Francione’s. It is unclear why Dunayer would draw special attention to this opening portion of the quotation and not the latter part that mentions the “one” right that Dunayer is so concerned about. Sometimes, the “[sic]” notation is incorrectly used to indicate that a portion of quoted text has been removed with the remaining quoted text still retaining its basic original meaning. Dunayer does not make this mistake because the quotation she provides is a word for word representation of Francione’s original text.[308] One would be left wondering why Dunayer uses this linguistic device at all, or places it in the middle of the quotation, unless one examined the larger original passage from which Dunayer draws it. Francione begins the passage in question by observing that the public discourse regarding the moral status of non-human animals is confused.[309] He says that one reason for this confusion is that some members of the public falsely believe that the animal rights position says that both human and non-human animals have exactly the same rights.[310] In response, Francione states that his theory of non-human animal rights does not advocate treating human and non-human animals the same for all purposes, such as giving non-human animals the right to vote or the right to a [human scholastic] education.[311] Immediately after this claim, Francione states “My position is simple: we are obligated to extend to animals only one right—the right not to be treated as the property of humans.”[312]—This is the quotation that Dunayer uses without placing it in its proper context, which is: Francione contends that non-human animals should not have “human” rights that would not protect their interests (e.g. non-human animals do not have an interest in a university education)[313] and Francione repeatedly states that if non-human animals had the one right not to be property, then all institutionalized exploitation of non-human animals would be abolished.[314] I will address Dunayer’s objection that more than the right not to be property would be required to protect non-human animals in non-institutionalized settings below. Now, however, recall that Dunayer portrays both herself and Paola Cavalieri as contending that the right not to be property is the prerequisite for legal rights and she portrays Francione as disagreeing with that view when it is applied to non-human animals, but agreeing with it when it is applied to human animals. Contrary to Dunayer’s portrayal of Francione, Francione states that human animals have the right not to be property, this is a basic right since it grounds all other rights, and the principle of equal consideration of interests demands that both human and non-human animals have this right.[315] Although Francione says that non-human animals should only have the one basic right not to be property[316], and although he does not discuss what non-basic rights the right not to be property encompasses with respect to non-human animals, Francione does not rule out non-human animals having non-basic, or less basic, rights that are encompassed by the one basic right not to be property.[317] To the contrary, Francione begins his discussion of basic rights by using human animals as his example and then extends the same arguments he uses for humans to non-human animals.[318] First, and contrary to Dunayer’s portrayal, Francione argues that the basic right not to be property as applied to human animals (which he later applies to non-human animals) “is a pre-legal right in that it is a necessary prerequisite to the enjoyment of any other right. …humans must possess a basic right not to be [used exclusively] a resource as a minimal prerequisite to be a moral and legal person…”[319] In discussing the meaning of a basic right as applied to human animals, Francione cites the work of Henry Shue: “Although Shue identifies several basic rights, the most important of these is the ‘basic right to physical security—a right that is basic not to be subjected to murder, torture, mayhem, rape, or assault.’”[320] Still speaking of human rights, Francione continues: …if I have no right to physical security and you have the right to kill me at any time, then my possession of the right to drive or vote becomes meaningless. … The basic right not to be treated as a thing [i.e. property] is the minimal condition for membership in the moral community. This is the one right that we all agree is inalienable; you can get greater protection, but if you are going to be a member of the moral community—if you are not going to be treated as a thing that has no protected interests—then you cannot g | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
