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The Problem: "Unnecessary" Suffering
and the "Humane" Treatment of Property
"Necessary" Suffering: Three Examples
THERE IS increasing social concern about our use of nonhumans for experiments, (1) food,(2) clothing,(3) and entertainment.(4) This concern about animals reflects both our own moral development as a civilization and our recognition that the differences between humans and animals are, for the most part, differences of degree and not of kind. For example, recent work in animal behavior and psychology has confirmed that many animals possess highly developed cognitive abilities.(5) A popular magazine had a front-cover feature on the implication of our recognition of animal's cognitive abilities and concluded that "it is one thing to treat animals as mere resources if they are presumed to be little more than living robots, but it is entirely different if they are recognized as fellow sentient beings.(6) Philosophical writings, such as The Case for Animal Rights by Tom Regan and Animal Liberation by Peter Singer, have presented and developed sophisticated and persuasive arguments in favor of increased moral consideration for animals. According to Regan and Singer, prevailing social attitudes toward animals are characterized by "speciesism." which, like racism, sexism, or homophobia, uses a morally irrelevant criterion - species membership - to determine membership in the moral community. Regan and Singer argue that speciesism is no more logically or morally defensible than is any other form of prejudice against the otheror bias in favor of those who are like the self.
Although animal rights may be a remote goal in a nation that still disregards the rights of the poor, of women, of people of color, and of children and the elderly, there can be little, if any, doubt that conventional morality strongly prescribes the infliction of any "unnecessary" pain on animals and imposes an obligation of all humans to treat nonhumans "humanely."(7) Despite ubiquitous agreement on these points, there is also widespread acknowledgment that animal abuse does continue unabated in our society. What accounts for this ostensible irony is that animals do not have rights under the law. There are, of course, many laws on the federal and state levels that purport to protect animals from "inhumane" treatment, but these laws do not really confer rights in the sense that we usually use that term. Indeed, the vast majority of these laws do not even prohibit certain types of conduct that adversely affects animals. To the extent that the law does contain any types of prohibitions, such as the illegality of dogfighting or cockfighting, these prohibitions are usually more concerned with class issues or other moral issues than with animal protection. Similarly, aggressive efforts by police to prohibit the use of animals in religious "sacrifies" may have more to do with racist attitudes about the religion involved than with concern about animals. Both dogfighting and cockfighting are activities that are ostensibly more common among members of disempowered minority communities. Although these prohibitions also appear to be related to a general social disapproval of gambling, other animal wagering activities (e.g., horseracing) are more common among the middle and upper classes; indeed, several such events, such as the Kentucky Derby, are quite celebrated. Prohibitions (e.g., no animal can be used in burn experiments) may imply that there are some interests possessed by the animal that may not be traded away simply because of consequential considerations (e.g., the animal has an interest in not being used in burn experiments even where it can be plausibly argued that humans will benefit). Animals are the property of people, and property owners usually react rather strongly against any measure that threatens their autonomy concerning the use of their property.
I refer to the current regulatory structure in this country as it pertains to animals as legal welfarism, or the notion, represented by and in various legal doctrines, that animals, which are the property of people, may be treated solely as means to ends by humans as long as this exploitation does not result in the infliction of "unnecessary" pain, suffering, or death. I use this expression to distinguish current legal doctrine from other consequentialist moral theories that may advocate greater protection for animals and from the moral notion of animal rights, which, as I discussed in the Introduction, seeks to shift our framework for dealing with animal issues toward a recognition that at least some animals may be said to possess rights that are not subject to abrogation merely because humans will benefit from that abrogation. Moreover, I distinguish legal welfarism from other types of regulatory systems, such as those that might attempt to regulate animal treatment through the imposition of prohibitions. As I mentioned above, when the state prohibits altogether certain types of animal treatment, it may recognize animal interests that are not subject to abrogation simply on the basis of consequential considerations; legal welfarism treats virtually all animal interests as subject to sacrifice in favor of human interests, however trivial relative to the animal interest at stake.
The law requires that we "balance" the interests of humans and animals in order to decide what constitutes "humane" treatment and "unnecessary" suffering. The problem is that the framework of legal welfarism contains numerous normative considerations that render empty, for the most part, any attempt to "balance" - at least as far as animal interests are concerned. The result of legal welfarism is that in many instances a relatively trivial human interest is balanced against an animal's most fundamental interest in not experiencing pain or death. and the human interest nevertheless prevails. We all reject "unnecessary" cruelty, but we still allow bow hunting, pigeon shoots, rodeos, and all sorts of activities that are difficult to justify on any coherent moral ground. These practices result in unspeakable cruelty to animals, and none of these practices serves any purpose beyond mere entertainment. Nevertheless, such practices are protected under the law. A legal system that relies primarily on laws requiring "humane" treatment or prohibiting "unnecessary" suffering simply cannot protect beings that are, as a matter of law, regarded as the personal property of their owners. Three examples will illustrate the problem.(8)
First, in New Jersey Society for the Prevention of Cruelty to Animals v. Board of Education,(9) a local humane society sought to recover penalties against a school board when a high school student was permitted to induce cancer in live chickens. The state anticruelty law made it a misdemeanor to "inflict unnecessary cruelty upon a living animal or creature" or to "needlessly" mutilate or kill a living animal or creature.(10) The statute also provided that "properly conducted scientific experiments" were not covered.(11) There was no claim that the experiment was one for which there was any medical need. Indeed, the court noted that it was long known that the virus involved caused cancer in chickens and had "been the subject of many experiments over the years."(12) Nevertheless, the court deferred to scientific experts who, as "a result of Federal Government grants of some eight million dollars," concluded "that the use of living animals is essential at the high school level for biology studies in that it . . . helps students have sympathy for living things."(13)
Second, according to a 1992 article, scientists have determined that the same genetic mutation that causes quarter horses to have desirable physical appearance can also "cause the muscles to periodically seize up with spasms so uncontrollable that the afflicted animal may topple over and even die." The article continues:
Now that scientists have identified the guilty mutation and have developed a relatively simple test to detect it, a debate is rolling fierce, high-stakes world of horse breeding on whether it is fair to continue propagating a potentially dangerous trait in a breed simply because the characteristic can reap so many rewards for the human owners.(14)
Presumably, those who would opt for breeding for the mutation would regard any resultant suffering or death of the horse as "necessary."
Third, it was reported in 1993 that a landmark tourist attraction located in the area of New York known as Chinatown had regrettably ceased to exist. The attraction consisted of a specially trained chicken who lived in a small coup that was fitted into a vending machine. When a customer dropped fifty cents into the machine, the chicken, called Willy by his owner, would play tic-tac-toe with the customer - and would almost always win. Willy had spent all of his life - two years - living in the machine. His predecessor spent eight years in the coop, and other performing chickens have been in the Chinatown games arcade since the 1960s. A glass front left the coop, which had a wire floor, exposed constantly to hordes of tourist who stared at these birds and challenged them to "play." The coop was located "next to the lows of noisy electronic zappers and death rays," not far from another chicken, whose name was not reported by the Times, and who amused patrons by dancing rather than playing tic-tac-toc. When a costumer dropped seventy-five cents into the machine the chicken "walk[ed] through a trap door to a round metal tray resembling a wobbly turntable. As the tray teeter[ted] the chicken flap[ped] its wings and shuffle[d] to balance itself in a manner that look[ed] like dancing."(15)
The tone of the report about Willy was a mixture of maudlin sentimentalism and attempted humor. The writer stated that although it is the "job" of chickens to die "for those of us who have played the chicken. The sight of its empty box evokes feelings of sadness if not quite tragedy." It showed a great deal of heart almost to the end. Just two days before it died it was still pecking its way through games with whoever dropped 50 cents into the slot in front of its coop." Willy was "not like meat from Frank Perdue. It was our playmate, and since we have always been a particularly self-centered species that elevated it." The dancing chicken "in the best show-business tradition . . . carries on despite the death of its comrade." The arcade owner is thinking about replacing Willy but complained that trained chickens cost more than $1000 "`which is a good deal of money when you consider that the last one only lived two years.'"(16)
There was not one word in the lengthy report about the propriety of this amusement from the standpoint of the humane treatment of animals. And despite New York's strongly worded anticruelty statute the American Society for the Prevention of Cruelty to Animals located in New York City has not prohibited this senseless and wholly unnecessary exploitation of these birds.
"Unnecessary" Cruelty: The "Balance"
of Unprotected Animal Interests
It is difficult if not impossible to understand the use of "necessity" in any of the three preceding examples. In the first example a high school student's infliction of pain and death on chickens is justified as necessary to the child's development of a "sympathy for living things." Most of the time those who use animals in experiments justify that use by pointing to alleged benefits to human and animal health and the supposed necessity of using animals to obtain those benefits. In this case however there was no claim of such benefit and it is mainly difficult to maintain that inducing cancer in an animal is "necessary" to achieve the stated goal of teaching young people "sympathy nor living things." Similarly, those who use animals in teaching usually justify such use as "necessary" for the development of professional skills. In this case, however, the student was in secondary school and clearly did not need to learn such skills at that point in his educational career. Rather the human interest, described as helping students to develop in not being used for such purposes.
In the second example, the continued breeding for the mutation is "necessary" for horse owners to profit. There is no claim that the continued breeding will result in any benefit whatsover - other than monetary profit for human beings. Monetary benefit, then, is sufficient to constitute the necessity" required when we seek to justify animal exploitation - at least as far as some horse brokers are concerned. As the third example illustrates, human amusement is considered enough of a justification for animal exploitation that the Times writer did not consider it necessary even address the issue of humane treatment in the article.(17) The third example is also reflective of the concern raised in the context of the pigeon shoot I described in the Preface.
If animal use is "necessary" in the these three cases - which are, by far, no the most egregious examples that could be used - then when is animal use "unnecessary" and what, exactly, does "necessity" mean? When we turn to legal doctrine to try to understand the notion of "necessity," we see that the notion that applies to human/animal conflicts stands in market contrast to the notion employed when human/animal conflicts are involved. Every first-year law student has read Regina v. Dudley & Stephens,(18) a case involving cannibalism. Dudley and Stephens, together with Brooks and Parker, were shipwrecked in a storm that claimed the lives of the remainder of the crew. The four young men afloat in a small boat that had survived the storm, but the boat had no water and only two small cans of turnips, and the nearest land was over a thousand miles away. After having no food for nine days or water for seven days, Dudley and Strephens killed Parker without the latter's consent.(19) They then drank Parker's blood and ate his body. Four days after parker was killed, a passing ship rescued the men, and Dudley and Stephens were tried for the murder of Parker.(20) At trial, the defendants argued that their killing of Parker should be excused the doctrine of "necessity" because it was "necessary" for Dudley and Stephens to preserve their own lives.(21) The court rejected this argument, holding that there is no "absolute and unqualified necessity to preserve one's life." In rejecting this notion of necessity, the court asked, "Who is to be judge of this sort of necessity? By what measure is the comparative value of lives to be measure?"(22)
In Dudley & Stephens the jury found specifically that at the time of the murder, Parker was in a much weaker physical condition than other three men, that it was likely that Parker would have died before the other three men event if he had not been murdered, and that there had been no reasonable prospect that the men could be saved.(23) Nevertheless, the court found that the defendant's actions were not justifiable as "necessary."(24) Although Dudley and Stephens had interests in remaning alive, so did Parker, and parker's right was upheld even though his "sacrifice" had beneficial consequences for a greater of other people. This is the whole point al a right: asa general matter, Income, it cannot be abrogated even this is the whole point of right: as a general, it cannot be abrogated if the violation piicil produces for others. To put it another way, when it comes to killing innocent human being or inflicting injuries on them, we lend to reject utilitarian thinking in a favor of treating persons a sends, rather that as means to ends. Morever, the court correctly pointed out that any appeal to the "necessity" for homicide would invariably involve the courts in value judgments about the relative value of human rightholders and in formulating criteria for determining what constitutes "necessity."
Indeed, if a researcher needed fifty innocent unconsenting human beings in order to perform an experiment that would result in a cure for cancer, most people would not permit the use of humans in the experiment. Although the use of the humans might be "necessary" in a very direct and casual way, most people would regard the necessity argument as ignoring the rights claims of the potential victims. We simply use the concept of "necessity" in different ways when we talk about humans and nonhumans. In Dudley & Stephens the four men also killed and ate a turtle fairly early in their voyage. But the court never discussed any legal or moral issue connected with the death of the turtle. The level of human need that results in the "necessity" for animal suffering or death is clearly different from the level "needed" for human suffering or death.
The problem is that many animal exploiters assert that the notions of "necessity" are the same and equally protective of human and animal life.(25) This assertion is simply not true. When we balance human and animal interests in order to see whether suffering is "necessary" or "justified," our notion of "necessity" is shaped by the fact that we generally balance two very different entities. Human beings are regarded by the law as having interests that are supported by rights. In the case of Dudley & Stephens, the three men were all rightholders, and the court sought to balance competing claims of right. Nonhuman animals are regarded by the law as incapable of having rights - or, at least, the same type of rights possessed by humans - despite an increasing consensus that animals possess some moral rights that ought to be recognized by the legal system. Our entire legal approach to resolving human/animal conflicts, which, as I mentioned above, rests on the notion of animal welfare and not animal rights, virtually guarantees that animal interests will be regarded as of lesser import, even when the human interest is trivial relative to the animal interest. Moreover, there are other normative considerations involved that make it difficult, if not impossible, for animals to prevail. For example, we often assume without question that we can accord "humane" treatment to animals used in sometimes quite painful medical experiments. Thus, to the extent that humans have rights and animals do not, animal interests are, of necessity, accorded less weight.
A critic may reply that "necessity," when used to discuss moral necessity, as opposed to causal necessity, is inherently imprecise whether applied to animals or humans. This criticism requires that I first distinguish briefly two senses of the term "necessity." Necessity, as I am presently discussing that notion, refers to moral necessity; a judgment and is quite different from the usual case of a judgment of causal necessity. There is, however, a sense in which judgments about "necessary" suffering all concern causal necessity. For example, those who use animals in biomedical experiments make moral judgments about necessity (i.e., they routinely deny that animal suffering is "unnecessary") but they also make a general judgment about causal necessity: they maintain, for the most part, that animal use is necessary - in a causal way - if humans are to achieve progress in fighting disease, developing medicines and new products, and so forth. On this view, progress and animal exploitation are causally linked. Similarly, someone who supports the use or animals in rodeos (in which animals are brutally treated and killed routinely) may argue that animal use is necessary - in a causal way - given the nature of the activity. Although I am more concerned about moral judgments about necessity, the line is difficult to draw, and in a sense, the problem is precisely that from the point of view of the person seeking to exploit the animal, almost all judgments about necessity are of a causal type; the exploiter is asserting that the animal use is necessary given the nature of the practice, which will, by definition, involve animals. From an external point of view (i.e., the perspective of one not involved in the activity), these judgments say more about morality than they do about causation.
Although there is ambiguity surrounding the notion of moral necessity as applied to humans or animals, judgments of moral necessity are more problematic when animals are involved. For example, if one of my colleagues were to tell me that I was being "unnecessarily" harsh in my classroom behavior with my law students who gave wrong answers in recitation, that comment would most certainly represent a value judgment (or, perhaps, a series of such judgments) that probably could not be reduced to any noncontroversial or "precise" assertion. Although there is inherent imprecision in the notion of necessity, my point about its differential application to animals goes well beyond any such imprecision. To return to my colleague's criticism; if I responded in class to a student's wrong answer by shooting and killing the students, my colleague's criticism would not be particularly meaningful, since my reaction already transcended what could be called "necessary" by any standard. Indeed, although my shooting the student could be criticized coherently on numerous moral and legal grounds employing a wide range of moral discourse, I doubt that anyone would think it sensible (or even coherent) to discuss whether I inflicted "unnecessary" suffering or death on the student. The point is that when we are talking about human beings, not every action is open to discussion and ultimate characterization as "necessary" or "unnecessary" even taking into consideration the linguistic imprecision. The reason is, as illustrated by Dudley & Stephen, that humans have certain rights that protect their interests and those interests are simply excluded from the balancing process. In the case of animals, every animal interest that we acknowledge (and we do not recognize many, and some philosophers argue that animals have to interests at all) is subject to being compromised. Therefore, even though judgments of moral necessity are inherently imprecise even as they apply to humans, they are qualitatively more problematic when animals are involved, because there is, by virtue of the fact that animals are not rightholders, no animal interest that cannot be sacrificed if some human decides that the animal's death or suffering is "necessary."
Animal Property and Legal Welfarism
The lopsided results generated by such an unbalanced balancing approach are exacerbated when the properly rights of humans are involved, because animals are a form of property. Humans are entitled under the laws of property to convey or sell their animals, consume or kill them, use them as collateral, obtain their natural dividends, and exclude others from interfering with an owner's exercise of dominion and control over them. A property owner's treatment of an animal may ostensibly be limited by anticruelty laws, but property rights are paramount in determining the ambit of protection accorded to animals by law.
The property status of animals dominates the way in which the political and legal systems think about nonhumans. For example, President Clinton recently proclaimed the first week of May as "Be Kind to Animals and National Pet Week."(26) In the proclamation, President Clinton made the following observations concerning animals: (1) in colonial times, animals as beasts of burden and carried our belongings; (2) animals helped early settlers to earn a living and otherwise to sustain themselves; (3) animals serve the blind as guides; (4) animals assist in military, customs, and law enforcement efforts; (5) animals ease the loneliness of the ill and the elderly; and (6) animals entertain us and our children in our daily lives. It should be noted that in every instance of our interaction with animals mentioned by President Clinton, the emphasis is upon the instrumental value of animals and not on any inherent value that the animals may have. This is reflective of the notion that animals are property; they are, as a matter of law, solely means to human ends. As such, their value is measured in terms of their usefulness to humans, and not in terms of their own interests, the existence of which cannot be denied. Moreover, property rights have an explicit constitutional basis and are considered to be "natural rights," reflecting the moral ontology of English philosopher John Locke.(27)
The property aspect of animals is almost always a major component in the resolution of human/animal conflicts, because even if the property status is not explicit, in almost all circumstances in which human and animal interests conflict a human is seekingh to act upon her property. As far as the law is concerned, it is as if we were resolving a conflict between a person and a lump, or some other piece of personal property. The winner of the dispute is predetermined by the way in which the conflict is conceptualized in the first place. The human interest in regarding animals as property is so strong that even when people do not want to consider animals as mere "property" and instead view animals as members of their family (as in the case of dogs, cats, and other companion animals), the law generally refuses to recognize that relationship. For example, if one person negligently kills the dog of another, most courts refuse to recognize the status of the animal as family member and limit the owner to the same recovry that would be allowed if the property were inanimate.
There are rights other than the right of private property that serve to support the interests against which we balance the unprotected interests of animals, but these other rights usually depend on legal welfarism's fundamental assumption that animals are property. For example, as I show in Part III, defenders of the use of animals in biomedical experiments often argue that their use of animals is protected by their right of free inquiry, which, in turn they connectt with the guarantee of free speech contained in the First Amendment to the United States Constitution. I argue that the right of free inquiry cannot serve to justify animal experimentation and that, in any event such a claim would depend ultimately on the property status of animals. So, even though there are other human rights that may be relevant in the balancing process, these rights often assume the property status of animals.
The status of animals as property, as well as the resulting inability to "balance" animal and human interests, is effectively obscured by our discusion of the relevant issues in "normative" terms. As a general matter, our discussion of issues concerning the nature of law, the nature of rights, the process of judicial decision making, and the character of legal reasoning is "cast in terms of conflicts among normative conceptions of justice, efficiency, rights, morality, order, self-determination, community. and so on."[2k] We must be more skeptical about normative analysis because it may serve to legitimize the oppression of certain members of society. For example, Richard Delgado argues that in the literature debating surrogate motherhood, in vitro fertilization, and egg transfer, the primary moral issues concern the need to ensure informed consent and to protect the contractual freedom of the parties. Delgado argues that these concerns focus on the "micro" issues and hide the fact that the development of such technologies
invariably sharpen the differences in resources and control between the "haves" and the "have nots." Reproductive technologies are likely to do so even more than other types of technology, since they are developed and distributed by a group (the medical profession that is already empowered and has high prestige, and then distributed mainly to patients (a vulnerable group) who are largely female and infertile.
Precisely the same problem occurs when we discuss the regulation of animal exploitation. When we purport to regulate animal exploitation, we talk in normative terms of the "humane" treatment of animals (e.g., of the minimum size of cages in which animals used in experiments are housed) and the prevention of "unnecessary" pain (e.g., through the use of anesthetics and analgesics). Although these "micro" ethical issues makes it appear as though we are taking animal interest most seriously, such concerns fail to take into account that any laws and regulations affecting animals are interpreted and applied by an empowered group (i.e., the ownersof animals) to scutient beings who arguably constitute the most disempowered group in our society - nonhuman animals. The total disparity in the economic power between the two groups - humans and animals - is manifested in the legal approach to the resolution of human/animal conflicts.
The reliance on these normative concepts obscures the fundamental issue to be decided: Is our exploitation of nonhumans justified in the first place? These normative concepts assume, sub silentio, an affirmative answer to this question. The normativity of the law as it concerns animals supports structures regulating animal use that focus our attention on notions like "humane" treatment and "unnecessary" suffering and away from the status of animals as property and the primary consequence of that status that these terms have completely different legal meanings from the ones they have in ordinary language That is, normativity obscures the realities of legal welfarism, which dictates that the level of animal protection be limited to that which most efficiently facilities the exploitation of animals.
To the extent, then, that legal thought prescribes that our treatment of animals requires that we balance competing human and animal interests - and with the help of normative analysis - we delude ourselves in thinking that animals can ever prevail. Our myriad laws and regulations that purport to protect animals are unable to achieve even a minimally acceptable level of protection as long as humans are the only rightholders and animal are regarded as "property."
Despite the universally accepted moral maxim that we ought not to kill or inflict pain on animals unless it is "necessary," our legal system, which embodies legal welfarism, is structured of that virtually any animal exploitation can be regarded as necessary." That is, the law has developed a distinct structure for dealing with animal claims, and that structure, by deflecting attention to normative concerns that server only to highlight the "micro" issues, guarantee that animal claims never even get into court. Even if a claim does get into court, the animal interest is weighed as trivial relative to the human interest at stake.
Legal welfarism has four basic and interrelated components. First,t legal welfarism characterized animals are property of human beings. The only difference between domestic animals, which by definition, must be owned by someone, and wild animals is that in the latter case ownership in the animals is hold by the state and may be transferred to nongovernmental owners.
Second, legal welfarism interprets the property status of animals to justify the treatment of animals exclusively as means as to human owners.
Third, legal welfarism provides that animal use is "necessary" whenever that use is part of a generally accepted social institution.
Fourth, legal welfarism; does not proscribe "crucky" as that term is understood in ordinary discourse. Rather, legal welfarism interprets "cruelty" refer to animal use that, for the most part, fails to facilitate, and may even frustrate, that animal exploitation. For example, we tolerate practices in animal agriculture, such as castration and branding without any pain relief, and we do not label these practices "cruel," because they facilitate our institutional use of animals for food. We do not, however, permit farmers to starve these castrated and branded animals to death merely because the farmer does not wish to be bothered to feed the animals. The difference in treatment is not attributable to any differences in the quality of treatment. Rather, castration and branding are regarded (by those who own animals used for food) as "necessary" and are, as a result, permitted by the legal system, whereas allowing animals to starve for no reason other than neglect does not facilitate the exploitation of the animals for food or any other purpose.
Maximizing the Value of Animal Property
In the proceeding section I argued that legal welfraism permits any animal exploitation that is not wholly gratuitous. To put the matter another way legal welfraism, or the treatment accorded to animals under the law, is determined by reference to any moral ideal hut by the property status of the animal and by what conduct is perceived to maximize the value of animal property. According to traditional economic analysis people are rational maximizers of their satisfactions, and resources tend to gravitate toward their most valuable uses if voluntary exchange is permitted.(30.) The Coase Theorem states that the animal assignment of a property right does not determine the ultimate use of the property, precisely because, in the absence of the transactions costs,(31) resources are ultimately used in a way that maximizes wealth irrespective of the initial distribution of tightly. this wealth maximization occurs depends in large part on the transaction cost involver, but, according to the law-and-economics theorists, wealth maximazation not only serves to explain most of the doctrines of the common law but also serves as a normative principle that guides judges in future decisions.(33) Interestingly, highly advocates of this approach often argue that the principle of economic efficiency is either "neutral" or consisted with a morally desirable form of utilatarian thought. Critics of the economic approach to law argued that the flaw in the indifference toward the initial distribution of rights is revealed by the economists willing to have human slavery as an starting point.(46) Defenders of the approach reply that even if initial property rights rights a were distributed so that "one person owned all the others, so most of the others would have bought their freedom from that person because their output be greater as free individuals than as slaves, enabling them to pay for the right to their labor than that right was worth to the slave owner."(35) Nevertheless. "the theoretical possibility exists that efficiency might dictate slavery or some other monstrous rights assignment."(36) In such cases, the answer is found not in economic theory but elsewhere: "We do not permit degrading invasions of individual autonomy merely on a judgment that, on balance, the invasion would maker a net addition to the social wealth. And whatever the philosophical grounding of this sentiment, it is too deeply entrenched in our society at present for wealth maximization to be given a free rein."(37)
Irrespective of the debate about the efficiency of human slavery, the implications have historically been allocated to people - and animals remain property - because that allocation of rights is thought to maximize the value of the animal to human beings. Indeed, our allocation to human of rights in the bodies of animals reflects the notion that it is more efficient to relegate animals to property status (with all of the consequences that are entailed and because of all the consequences that are entailed) than it is to value animals for themselves and to accord them dignity and respect. Moral concern for animals is not a "cost-justified policy."(38) The fact that we allocate property right as in animals means that we do not value animals in themselves, or that we do not value animal protection (beyond what is necessary to ensure efficient exploitation of animals) in itself, The property status of animals clearly maximizes the wealth of animal resources in that the property status of animals makes possible a market in which there are offering and asking pries. Indeed, it would make no sense to talk about the productive value of animals if animals were not property; the only measure of their productivity involves their value to human beings. The productive value and the property status of animals are inextricably intertwined. The value of animals is dependent on their property status, and in the absence of a pervasive system of animal servitude, it is unlikely - to say the least - that animals would "voluntarily" often themselves to be used as food sources or as laboratory "equipment." In a system in which animals are property, they are, unlike human slaves (assuming the validity of certain economic theories), going to remain property because although there may be uses for the animal that maximize wealth even more, all uses depend on the status of the animal as the property of humans. Animals are not capable of buying their freedom, and even if there are many affluent altruists who suffer great discomfort from their knowledge of animal exploitation, it is unlikely that they will be able to influence the treatment of animals in any significant way. Although the economic analysis of statutes differs somewhat from common-law rules, statutes also seek to provide only that level of protection of animals that is consistent with the most productive use of the animal in the particular context. Moreover, since animals are the property of owners and we assume that the owners of property seek to maximize the value of their own property, we rely to a great extent on self-government to ensure that animals are given the level of welfare needed to ensure their most efficient exploitation. Indeed, the fundamental economic notions of Pareto superiority, an economic state where no one is worse off and at least one person is better off than in an alternative state, and Pareto optimality, an economic state in which no person can be made better off without harming another person, assume that people are the best judges of their relative well-being and of their valuation of their own property, which includes their animal property.(39)
Even when society regulates the uses of property, that regulation is, at least ideally, supposed to maximize social wealth, and in some cases the owners of the property may be entitled to compensation if the property is taken outright or is regulated to such a degree that there is a constructive "taking" of the property. Regulation of the use of animals represents the only instance of property regulation where the regulation is, at least ostensibly, for the benefit of the property and not for the purpose of maximizing social wealth - although, for those people who are concerned about the treatment of animals, the regulation of animals use may represent a benefit. We seek t achieve the optimal level of regulation given the value of the property and the overall social wealth that results from the regulation.
For the most part, however, the suffering of animals represents a truly "external" cost of animal use because there is no easy way to quantify and "internalize" that cost for purpose of determining what course of action best serves the goal economic efficiency. Indeed, to the extent that the regulation of animal use produces a social benefit, we do not measure that benefit from the point of view of the animal, because the animal is only property that has no entitlements protected by right or otherwise. Rather, any social benefit must be understood in terms of the benefits that humans perceive to come from such regulation. As one government agency charged with regulating animal use has stated, "animal welfare is an anthropomorphic attribute" that requires the measurement of the "increase in the level of public perception in animal welfare as the level of stringency of the regulations also increases." Such measurement involve a "lengthy and cost prohibitive study of marginal increases in social welfare or utility." (40)
The tension that arise from the perceived need to maximize the value of property - in this case, animal property - and the costs of regulation of property use mean, in effect, that the standards of animal welfare - the legal standards for determining what constitutes "unnecessary" suffering or "cruel" treatment - are, for the most part, determined not by some moral ideal but by the perceived legitimacy of the use to which the animals are put. And without any notion of absolute prohibitions on the use of animals, virtually all uses of animals that generate social wealth are regarded as legitimate. To put it another way, "humane" treatment and "unnecessary" suffering are determined by what most productively facilitates particular forms of animal exploitation. If the use objected to results in the infliction of suffering but that suffering facilitates that use and generates social wealth, then the use, however "inhumane" it may be in terms of the ordinary use of the word, results in "necessary" suffering that is not proscribed. If there is no socially recognized economic benefit generated by the conduct and the conduct consists largely of the infliction of gratuitous suffering, then the law may proscribe the conduct because overall social wealth is diminished. Moreover, legal welfarism requires structures that exclude the imposition of costs on animal ownership without corresponding economic benefits for (animal) property owners. That is, if we assume (as we do) that property owners know best how to use property and that it is difficult to quantify the social benefit of increased animal welfare, then any changes to the regulatory scheme that depart from these assumptions will be regarded (probably correctly) as diminishing the efficient use of animal resources. For example, as I show in Chapter Four, courts have developed rules to bar claims that are perceived to represent inefficiency in the system of animal ownership.
Economic analysis of child protection offers an insight that helps to elucidate the preceding point. Generally speaking, given that society wishes "to maximize the aggregate welfare of all of its citizens," "children require a considerable investment of both parental time and market inputs (food, clothing, tuition, etc.)" in order "to realize their potential as adults in economic terms, to achieve a high level of lifetime utility."(41) Society has laws to protect children, such as requirements of financial and educational support and restrictions on child labor, in order to ameliorate the underinvestment of resources in children's human capital. Although, as a historical matter, the concern for child welfare and the concern for animal welfare were closely connected, the economic basis for the former is quite different from that for the latter. Although we want both children and animals to be "productive" and we want to maximize their "potential" to achieve a "high level of lifetime utility," these goals, in the context of children, necessarily recognize the value or human autonomy and the role of law in attempting to protect the "potential" of children. With animals, however, the situation is quite different in that the only investment of resources required to ensure that the "potential" of animals is recognized is that level that most efficiently facilitates the exploitation or animals as means to human ends.
For example, the level of investment required to ensure that an animal used for experiments achieves its "potential" is the level that ensures that the use of the animal will result in usable data. Given that animals are property, any additional protection is economically inefficient because wealth is not maximized - and, indeed, is diminished - by this additional protection. If the only "capital" represented by animals is their value as means to human ends, then the only investment required (the content of animal welfare) is that level of investment that facilitates the efficient exploitation of those animals. There are two relevant qualifications of this notion. First, society may wish to "purchase" more protection for animals because animal cruelty may have negative effects on people in precisely the same way that poverty imposes various costs on the middle class, such as increased incidence of crime. That is, animal cruelty may he equaled to an overall diminution of moral sensibility that translates into undesirable treatment of people by other people. The problem is that it is difficult, if not impossible, to measure this effect, so it becomes similarly difficult, if not impossible, to know what level of additional protection for animals ought to be "purchased" so that people will treat other people better. Second, affluent altruists are, in theory, in a position to "purchase" more protection for animals through the political process, but the transaction costs associated with the purchase of greater protection, in the face of an economy that is very dependent on animal exploitation, are staggering and would reduce to de minimis the amount of additional protection purchased.
Before we conclude that the notion of "humane" treatment embodied in legal welfarism is just another concept whose meaning has been twisted out of recognition by lawyers and judges and that legal welfarism does not embody ordinary notions of "necessary" suffering, we should consider that the tenets of legal welfarism pervade much of our ordinary-language discourse about animals. Indeed, it is precisely because most of us are in certain respects legal welfarists that we fail to see the contradictory relationships that we have with animals, and that these contradictions are at the very foundation of legal welfarism. There is no doubt that most people in this country have had an experience with an animal, usually a dog or cat, who is regarded as a member of the family for all intents and purposes. Our ability to relate in this way to these companion animals obviously accounts for some of the strong reaction, including opposition, that many people have, for example, to the use of dogs or cats in biomedical experiments. In a recent essay legal scholars Alan Freeman and Betty Mensch observe that although "our culture tolerates those who lavish affection and resources on pets," we have a "paradoxical and contradictory relationship with pets [that] is but a subset of our relationship with animals generally. Animal suffering makes us anxious and uncomfortable, yet most of us want to make `rational' use of animals for our own well-being."(42) We resolve this contradiction through the doctrine of legal welfarism, which through the the treatment of animals as property facilitates the keeping or "pets" by people and at the same time permits any economically efficient, or "rational," exploitation of animals that we wish to use for food, or entertainment, or clothing.
Most people accept the underlying tenets of legal welfarism at least with respect to some activities. That is most people may express serious reservations about the treatment or laboratory animals (especially when dogs and cats are involved) or about animals trapped or raised for their fur. Such objections usually are aimed at the perceived disparity between the meaning of "humane" treatment used by researchers and furriers. which is embodied in the law that permits researchers and furriers to accord animals this (low) level of protection, and the notion of "humane" treatment as it is used (by the objectors) in ordinary, nonlegal moral discourse. Although these objectors may reject the exploitation of animals by others, they may themselves engage, usually indirectly, in animal exploitation as well.(43) Most people eat meat and do not for a second lament the deaths of the billions of farm animals slaughtered annually for food even though meat is no longer considered "necessary" for human health and may even be dangerous for people to consume and unsound for environmental as well as moral reasons.(44) Although we may experience sorrow for the death of a beloved companion animal, we feel no sorrow for animals killed for food. Indeed, the only time we lament the deaths of farm animals is when they die unproductively: then we care about their deaths but only to the extent that we care about the unproductive destruction of other nonanimal property. For example, a recent newspaper article reported that a grandson of an Amish bishop was charged "with setting fires that burned $1 million worth of barns and livestock last year on six Amish dairy farms."(45) The purpose of such a story is not to report that animals died and that their deaths are per se a reason for our concern; rather, the matter is reported to inform us that someone engaged in the unproductive destruction of animal and nonanimal property. The destruction of the animals for productive uses (i.e., for slaughter) occurs at a staggering rate of thousands per minute, yet we never read newspaper stories about the number of animals killed at the local abattoir. It would be bizarre to lament these deaths, because we granted them as productive - and therefore acceptable - uses of animals.
Similarly, the slaughtering guidelines developed by livestock expert Temple Grandin, promulgated by the American Meat Institute, and actually endorsed by some animal advocates state explicitly that although the standards will improve animal welfare, their primary goal is to achieve a slaughtering process that is "efficient and profitable." Indeed, Grandin emphasizes throughout her report that "proper" slaughtering procedures can "make the difference between profits and losses due to meat quality or worker safety."(46) "Humane" slaughter conforms to those standards that can, with few, if any, exceptions, be justified as ensuring that food animals are not "wasted" unnecessarily - that is, that food animals are not subjected to conduct that diminishes overall social wealth with no corresponding benefit for animal owners. The Grandin/Meat Institute standards suggest strongly that it is very difficult to get protection for animals that cannot be cost-justified, especially since concerns about animal protection do not figure into the "benefit" to be assessed.
We may lament the way in which animals are killed, but again, our concerns go to "unnecessary" suffering, which is unproductive; suffering that results in a more efficient production of animal products is tolerated. The proof of this proposition is that consumers do not, in sufficient numbers, value a reduction in animal suffering in the slaughter process enough to demand more "humanely" produced meat. Instead, most of us are quite content to express our concern for animals mistreated in modern agriculture but are unwilling to pay for alternatives.47 If we start to tinker with "necessity" and "humane" treatment as it involves exploitation, we have to start tinkering with that concept as it affects the indirect exploitation in which many of us are most active participants. In a sense, ten, the normativity of law helps us to deal with the dissonance between the level of exploitation permitted by legal welfarism and our own ordinary-language concepts of "humane" treatment and "unnecessary" suffering.
In this chapter, I have argued that our legal treatment of animals is characterized by a balancing process that requires us to weigh interests protected by powerful rights against interests protected by no rights. I called this balancing process legal welfarism and described its central tenets. I argued that the prohibition of gratuitous animal use has to be understood in light of the general tendency of the common law to maximize the value of property.
In the next chapter, I explore in greater detail the notion of animals as property.
|Preface and Acknowledgments|
|Introduction: Legal Welfarism: The Consequences of the Property Status of Animals||3|
|Pt. I||The Status of Animals as Property||15|
|1||The Problem: "Unnecessary" Suffering and the "Humane" Treatment of Property||17|
|2||The Dominion of Humans over Animals, the "Defects" of Animals, and the Common Law||33|
|3||Two Examples of Legal Welfarism||50|
|4||The Exclusion of Animal Interests from Legal Consideration - the Doctrine of Standing||65|
|5||Laws and Rights: Claims, Benefits, Interests, and the Instrumental Status of Animals||91|
|Pt. II||A General Application of the Theory: Anticruelty Statutes||117|
|6||The Purposes of Anticruelty Statutes||119|
|7||Anticruelty Statutes and the Protection of the Institutionalized Exploitation of Animals||134|
|Pt. III||A Specific Application of the Theory: The Regulation of Animal Experimentation||163|
|8||Animal Experimentation: Animal Property and Human "Benefit"||165|
|9||The Federal Animal Welfare Act||185|
|10||Administrative Regulation of the Animal Welfare Act||208|
|11||The Animal Welfare Act in the Courts||234|
|Epilogue: An Alternative to Legal Welfarism?||251|
|Explanation of Legal Citations||265|