Rights and Prohibitions?

Must we await the abolition of the property status of animals before we can talk about restructuring the legal system to reflect the recognition of animal rights, or can rights changes occur - in the legal system - without there being a complete abdication of the status of animals as property? In other words, can there be laws that regulate the use of animal property and that, unlike the ones I have examined in this book, actually do create rights? This is a most difficult question, about which I have four very preliminary observations. First, as I have argued throughout this book, there can be no doubt that as long as animals are regarde under the law as merely means to the human ends of property owners, it will be very difficult to have any true, respect-based animal rights. Animal rights, strictly speaking, imply the recognition of the inherent worth and value of the right-holder - something precluded by characterizing animals as property.

Second, I have argued that as long as the content of any such "right" is restricted to freedom from "unecessary" suffering or entitlement to "humane" treatment, then the animal's "right" is only to have the animal's interests balanced against human interests protected by right. It is precisely this kind of interest balancing that I have criticized throughout this book because the existence of such a "right" does nothing to alter the fundamentally skewed balancing process that systematically devalues (or, better, fails completely to recognize) animal interests.

Third, despite the unlikelihood of achieving animal rights within the present legal system, it may be possible to have a pluralistic system that characterizes animals as property but recognizes rights-type concepts on some level. That is, though it may not be meaningful to talk about animal rights within our present legal system if what we mean by rights is what Regan means by rights, we may nevertheless be able to achieve some rights-like protection of animals, protection based on the recognition of animal interests that are not susceptible to sacrifice merely on account of consequential considerations. The key to such a pluralistic situation lies in the distinction between prohibiting, or abolishing, exploitation or abuse and merely regulating it. This focus on abolition in the context of rights is really quiet natural; at the core of just about ever normative entity that we call a right is some notion that others are prohibited from interfering with the exercise of the right. This is particularly true of what Hohfeld called "claim" rights. A right, then, is a notion closely connected to the prohibition of activities that are judged to be inimical to the right. Prohibiting particular forms of animal exploitation is very different from merely prohibiting that exploitation when it is "inhumane" to do otherwise.

Fourth, any theory about prohibitions must take into account that not all prohibitions are the same. For example, a prohibition that absolutely banned certain experiments on the ground that no member of any sentient species should be subjected to this treatment would represent a different sort of prohibition from the ones now found in statutes such as the AWA (Animal Welfare Act). A rule that prohibits the with-holding of food (unless "scientifically necessary") is nothing more than an attempt to facilitate efficient exploitation; it in no way recognizes animal interests in the way that rights recognize human interests.

Francione, Gary L., Animal Property, and the Law, Temple University Press, 2007, Philadelphia

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