Toward Justice for AnimalsJason Wyckoff

University of Utah(forthcoming in Journal of Social Philosophy)

Abstract: I argue that non-human animals are claimants of justice, using aninterest-based approach to theorizing about justice. I critique two liberal defenses of animals, and then offer an alternative view that appeals to the principle of equal consideration, a principle which should appeal to consequentialists and deontologists alike. I demonstrate that this principle, when applied at the level of social structures rather than particular actions, compels us to conclude that animal commodification is aninjustice that is remediable only through the adoption of a view I refer to as “radical abolitionism,” which requires the abolition of humans’ use of non-human animals as resources. In the course of this argument, I reply to the arguments of Robert Garner and Alasdair Cochrane which purport to demonstrate that the commodification of animals is compatible with humans’ moral duties to animals.

On April 25, 2007, during the course of a drug

investigation, police raided a Virginia home owned by

professional football player Michael Vick, where they found some

sixty dogs and equipment typically associated with dogfighting.

After a federal investigation, Vick was charged with running an

interstate dogfighting operation, a charge to which he ultimately

pleaded guilty. By now, the activities in which Vick admitted

participating are well known: he has admitted that he not only

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funded the operation, provided the facilities, and shared in the

profits from the dogfighting ring, but also participated directly

in the killing of six to eight dogs who did not perform well. For

these crimes, he was sentenced to 23 months in a federal prison.

This is all we need say about Michael Vick here, because Vick’s

actions are not the part of this story that is most germane to my

thesis. Of greater interest are the comments made by another

professional football player, Clinton Portis, during an interview

conducted shortly after the raid on Vick’s house. “I don’t know

if he was fighting dogs or not,” Portis said, “but it’s his

property, it’s his dog. If that’s what he wants to do, do it. I

think people should mind their business.”1 Public opinion was not

on Portis’s side, and his remarks were widely criticized on the

ground that they condoned the immoral behavior that Vick was

alleged to have engaged in. But most of Portis’s critics (myself

included) failed to appreciate the fact that his remarks actually

reflected a profoundly important but rarely acknowledged fact

about Vick’s dogs: they, like many other animals kept as pets,

killed for food and clothing, used in medical experimentation and

product testing, or exploited for our entertainment, really are

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just property. Animal advocates would do well to recognize that

what Portis said was not only outrageous and insensitive; it was

also true.

Until fairly recently, philosophers and animal advocates

have generally treated the question of what we owe to non-human

animals as an ethical question, with a primary focus on the

treatment of particular animals, rather than as a social or political

question, with a focus on the use, exploitation, commodification,

or systematic extermination of animals.2 This framing of the

issue has tended to obscure the ways in which (and the degree to

which) the wrongs suffered by animals at the hands of human

beings are structural. I argue for an alternative approach that

frames the core problem as one of injustice rather than one of 1 http://sports.espn.go.com/nfl/news/story?id=28780992 Notable exceptions include Sue Donaldson and Will Kymlicka, Zoopolis: A Political Theory of Animal Rights. Oxford University Press (2011); Bob Torres, Making a Killing: The Political Economy of Animal Rights. AK Press (2007); Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership. Belknap Press. (2006); Catharine McKinnon, “Of Mice and Men: A Feminist Fragment on Animal Rights,” in M. Nussbaum and C. Sunstein (eds), Animal Rights: Current Debates and New Directions. OxfordUniversity Press (2005); Robert Garner, The Political Theory of Animal Rights. Manchester University Press (2005); David Nibert, Animal Rights/Human Rights. Rowman & Littlefield (2002); Mark Rowlands, Animal Rights: A Philosophical Defence. Macmillan (1998); Ted Benton, Natural Relations: Ecology, Animal Rights, and Social Justice. Verso (1993); Gary L. Francione, The Animal Rights Debate: Abolition or Regulation? (with Robert Garner). Columbia University Press (2010); Gary L Francione, Introduction to Animal Rights: Your Child or the Dog?. Temple University Press (2000); Gary L. Francione, Rain Without Thunder: The Ideology of the Animal Rights Movement. Temple University Press (1996). Gary L. Francione, Animals, Property, and the Law. Temple University Press (1995).

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wrongful human behavior. After sketching the range of available

positions on the status of animals as claimants of justice, I

critique two of the best-developed liberal conceptions of justice

for animals (Mark Rowlands’ Rawlsian view, and the citizenship

model of Sue Donaldson and Will Kymlicka) and conclude that both

theories rest on problematic premises. I then adopt an interest-

based condition for a theory of justice and argue that even if

some prima facie plausible moral principles permit us, under very

unusual circumstances, to subject moral patients to treatment

that would ordinarily be very seriously wrong, no plausible

political principles permit the creation of a social class of

moral patients, delineated on morally arbitrary grounds, the

members of which are disproportionately subject to that kind of

treatment. I then argue that the institutional framework that

structures our relations with non-human animals is one in which

non-human animals constitute a class of moral patients

disproportionately subject to treatment that is, under ordinary

circumstances, seriously wrong. I conclude that since no

plausible political principles permit the creation of such a

class, this institutional framework is unjust.

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I. Competing Positions on Animal Rights and Animal Welfare

I assume here the truth of a descriptive claim: that most

people, in most places and at most times, have subscribed to what

I will call the resource paradigm, or the cluster of beliefs,

assumptions, and practices that take animals to be resources that

humans may use in order to generate benefits for themselves and

other humans. At one end of the spectrum of normative views on

the moral and social status of animals is the view which I will

call radical exceptionalism, according to which non-human animals have

no moral status, and that human moral agents owe no direct duties

at all to animals. This view is clearly committed to the moral

legitimacy of the resource paradigm, but very few people today

actually seem to take this position3; it seems fair to speculate

that most people think that animals can be wronged by human

actions, and that our disagreements tend to be over the limits of

our duties to animals rather than the existence of any such

3 See, however, Peter Carruthers, The Animals Issue: Moral Theory in Practice. Cambridge University Press (1992).

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duties. In any event, little of what follows will be addressed to

the radical exceptionalist.

At the other end of the spectrum is the view that I will

call abolitionism, according to which non-human animals have a

moral status that is incompatible with the use of animals as the

resources of human beings, and that animal use must be abolished

either as a matter of right or as a matter of justice. In short,

abolitionists reject the resource paradigm on principle. Among

abolitionists, we can further distinguish between those who, as a

practical matter, reject any reforms that do not directly

challenge the resource paradigm, and those who accept abolition

as a long-term goal but are amenable to short-term reforms that

leave intact the basic structure of the resource paradigm. I will

refer to the former as radical abolitionists and the latter as pragmatic

abolitionists.4

Between these two extremes there is a wide range of views

that I will, following standard terminological practice in the

4 Gary L. Francione refers to radical abolitionists simply as “abolitionists,”and pragmatic abolitionists as “new welfarists.” (See, e.g., Francione, Rain Without Thunder). The “new welfarists” accept the abolition of animal use as a theoretical ideal, but are willing in the short term to pursue legislative reforms that aim to improve animal welfare but do not fundamentally alter the legal status of non-human animals, leaving their property status intact.

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literature, group together under the label welfarism. Welfarists

reject the radical exceptionalists’ claim that we owe no direct

duties to animals, but maintain that the moral status of animals

does not preclude our treating them as the resources of human

beings, as long as the animals are not made to suffer

unnecessarily. Welfarists do not reject the resource paradigm,

but they do maintain that there are limits to what humans may do

to animals. Obviously, there is room for tremendous variation

among welfarists, depending on how they each choose to cash out

notions like “unnecessary suffering.” I will not distinguish

further between different welfarist positions that one might

take, because my thesis is that radical abolitionism is the

correct view. My argument targets all forms of welfarism, as well

as pragmatic abolitionism, for rejection.

II. The Social Contract Model and the Citizenship Model

Before I proceed to a defense of my own framework for

thinking about the social and political status of animals, I

should briefly explain the merits and drawbacks of two

alternative approaches. In this section, I first address the

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social contract model of animal rights, exemplified by the view

of Mark Rowlands, and then the citizenship model, recently

defended by Sue Donaldson and Will Kymlicka.

Social contract theory (SCT) is the family of views

according to which the justification for any principle of justice

(or, more broadly, any political or moral principle) is that the

principle has secured the actual agreement of those who are bound

by it, or could secure the rational agreement of agents situated

in an ideal bargaining situation. We need not say much more than

this, since all social contract theories are problematic for the

same basic reason, formulated clearly and succinctly by Martha

Nussbaum: SCT conflates the question, “By whom are society's

basic principles designed?” and the question “For whom are

society's basic principles designed?”5 Consequently, SCT has

difficulty in handling the issues of disability (in humans) and

species membership, which both “involve a serious asymmetry of

power and capacity” between members of a privileged group and

members of some socially vulnerable or oppressed group.6 Social

contract theorists such as Locke, Rawls, and Gauthier7 assume

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that the purpose of social cooperation is mutual advantage, but

as Nussbaum points out, we do not need to cooperate with those

who are much weaker than us—we can simply dominate them.8 We may

have moral duties to them, but we do not owe them duties of

justice—at least not if justice is understood in terms of mutual

advantage.9

Mark Rowlands attempts to avoid this conflation of moral

agency and moral status while retaining the Rawlsian theoretical

framework. Rowlands argues for a “thickening” of the veil of

ignorance, so that the parties to the original position would not

know whether they would be fully rational beings once the veil is

lifted.10 If the veil is thickened in this way, then the parties

would have to take into account the possibility that they might

be cognitively disabled humans, or non-human animals.

5 Nussbaum, Frontiers of Justice (pp. 16, 21).6 Ibid, p. 22.7 David Gauthier writes, “Animals, the unborn, the congenitally handicapped and defective, fall beyond the pale of a morality tied to mutuality.” (David Gauthier, Morals by Agreement. Oxford University Press (1986)). It is worth noting that while Rawls collapses the distinction between agents and patients in his theory of justice, he does not deny that we owe moral duties (as opposed to duties of justice) to animals. (See Ruth Abbey, “Rawlsian Resourcesfor Animal Ethics,” Ethics and the Environment, 12:1 (2007), pp. 1-22).8 For Gauthier, principles are derived from mutual advantage alone; for Rawls,they are derived from mutual advantage plus basically Kantian moral constraints.9 Ibid, pp. 61-62.10 See generally Rowlands, Animal Rights: A Philosophical Defence.

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A suitably thick veil of ignorance captures what I take to

be a widely-shared assumption about claims of justice, namely,

that there is an important sense in which it doesn’t matter who you are.

Your mother may care more about you than about me, but society

should not. This is, of course, an oversimplification; justice

often requires that people be treated differently. Whatever the

appropriate treatment of murderers might be, few of us believe

that there ought to be no difference between society’s treatment

of murderers and society’s treatment of those who are not

murderers. But most of us also believe that the line between

murderers and non-murderers is not drawn arbitrarily from the

moral point of view, and that we therefore have good reasons to

draw that line. In many cases, lines that are justifiable from

the point of view of ethics are not justifiable from the point of

view of justice. Some moral theories may conclude that your

mother is permitted to dote on you, her child, while not doting

on me, a stranger, and those moral theories may not be outlandish

for drawing this conclusion. But your mother the U.S. Senator may

not use her political influence to your special advantage, for

that employs the machinery of social institutions in a way that

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treats people differently on morally arbitrary grounds. From

society’s point of view, it is arbitrary that you are your

mother’s child and I am not.

Within a contractualist framework based on the notion of

mutual advantage, however, this thickening of the veil of

ignorance is difficult to motivate. Why, we may wonder, must the

terms of cooperation be agreeable to those whose cooperation is

not needed? I suggest that we abandon the Rawlsian contractualist

framework but retain the basic idea suggested by Rowlands.

According to Rawls, the point of the veil of ignorance is to make

vivid to ourselves the constraints that it is reasonable to put

on arguments for principles of justice. Since what really matters

is the constraints themselves and not the representation of them,

we can incorporate such constraints into our argument without

representing them as a veil of ignorance. Later sections of this

paper will attempt to show how this can be done.

Before I tackle that problem, however, I would like to

consider a challenge to the claim that I have just tried to

motivate: that from “society’s point of view” it should not

matter who you are. Taking on the idea that membership in a

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political community is morally salient, Donaldson and Kymlicka

employ a citizenship model to develop accounts of domestic animal

citizenship, wild animal sovereignty, and liminal animal

denizenship. They argue convincingly that the concept of

citizenship encompasses more than just democratic political

agency, or “taking on the right and responsibility to shape the

law.”11 Citizenship also serves to ground rights to nationality

(the right to be allocated to a territory and to have secure

residence there) and popular sovereignty (the right to belong to

the people in whose name the state governs).

Donaldson and Kymlicka use this theoretical framework to

argue that the rights of domesticated animals (who are dependent

on humans for the care they need to survive and to thrive) can be

understood through a conception of citizenship that builds on

insights developed in the disability literature (expanding the

idea of political agency in interesting and important ways),

while populations of wild animals—who avoid human settlements to

the extent they are able—can be understood as sovereign

communities to which humans owe duties analogous to those owed to

11 Donaldson and Kymlicka Zoopolis, 55-61.

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human political communities that are not our own. Finally, they

maintain, “liminal animals” such as squirrels, mice, and pigeons—

who live among, and thrive in proximity to, human beings but do

not depend on human provision of food, shelter, and care—should

be regarded as denizens, or “permanent residents,” of human

political communities. The end product is a political theory of

animal rights that is highly sensitive to the different ways in

which various animals and animal communities are situated

relative to human social and political institutions.

These merits of the citizenship model notwithstanding, the

model is problematic in some respects. To begin with bounded

communities is to accept (tacitly, perhaps) imaginative

constraints that are themselves legitimate targets of scrutiny.

The assumption of the legitimacy, and not just the bare

existence, of sovereign, bounded human political communities

introduces complications of which Kymlicka and Donaldson are no

doubt aware; Kymlicka has made seminal contributions to the

literature on multiculturalism in polyethnic and multinational

political communities.12 The problem is particularly pronounced

12 See especially Will Kymlicka, Multicultural Citizenship. Oxford University Press (1995).

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when one is attempting to develop a theory of animal rights given

that the view of a globe divided into large, contiguous,

sovereign territories is inherently anthropocentric. I will not

attempt to argue here that these complications, at least insofar

as human interests are concerned, are irresolvable. Instead, I

want simply to set aside the assumptions that generate them, and

offer a sketch of an alternative theory of animal rights that

proceeds from different premises.

I do not mean to suggest that group membership is

irrelevant, nor to deny that there are morally significant

spatial dimensions to human-animal relations. I am claiming only

that in assessing the justice of social institutions we must look

to the impact of those institutions on the interests of members

of socially defined groups rather than on the interests of the

groups themselves, or on the interests of institutions maintained by

members of those groups (if indeed we want to speak of the latter two

sets of interests at all). A conception of human political

structures that enjoy states’ traditional rights to territorial

sovereignty and non-interference should not be taken as axiomatic

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in developing a theory of animal rights—or even in developing a

theory of human rights.

III. Interests, Ethics, and Justice

In making a fresh start on the question of animals’ social

and political status, I begin with the observation that, as a

general rule, consequentialists are more likely than

deontologists to be welfarists and deontologists are more likely

than consequentialists to be (or be committed to being)

abolitionists. This is perhaps unsurprising, since deontologists

(or at least those of a Kantian bent) can talk without discomfort

about acts and practices being categorically wrong while

consequentialists tend have a difficult time committing

themselves to the abolition of any practice in a non-contingent

way, for we can always imagine some set of doomsday circumstances

in which the monstrous becomes permissible, even obligatory. But

this way of thinking has a tendency (which I hope to show can be

overcome) to draw attention away from systemic bads—consider, for

example, the utilitarian prescriptions for the cure to world

poverty that we find in the work of Peter Singer13 and Peter

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Unger.14 Both authors focus on the responsibility of agents in

affluent countries to contribute to the reduction of suffering

among the global poor, but they give relatively little attention

to the root causes of global poverty. The problem is that

suffering is either silhouetted against, or else camouflaged by,

a background of justice or injustice. Utilitarian defenses of

animals, such as those offered by Singer (1975) and Norcross

(2004), tend not to emphasize the structure of that background.15

Can we proceed from a set of normative assumptions that both

consequentialists (such as Singer and Norcross) and deontologists

(such as Regan) could endorse to a theory of justice that

accounts for the non-contingent injustice of, say, human chattel

slavery, and perhaps animal exploitation as well? It turns out

that we can move from a fairly thin set of ethical assumptions to

a conclusion about the status of animals that most people would

regard as quite radical. Let us assume the truth of the principle of

equal consideration, according to which equal interests carry equal

13 Peter Singer, “Famine, Affluence, and Morality,” Philosophy and Public Affairs 1:3 (1972); Peter Singer, The Life You Can Save. Random House (2009).14 Peter Unger, Living High and Letting Die. Oxford University Press (1996).15 Peter Singer, Animal Liberation. Avon Books (1975); Alastair Norcross, “Puppies, Pigs, and People: Eating Meat and Marginal Cases,” Philosophical Perspectives 18 (2004).

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moral weight regardless of whose interests they are.16 If, for

example, an individual has an interest in not experiencing pain,

then that interest is no more and no less intrinsically morally

significant than any other moral patient’s interest in not

experiencing pain. This is a principle that consequentialists and

deontologists alike can accept, and it is the principle that we

seem to be appealing to when we say that, from the point of view

of justice, it does not matter who you are.17

The principle of equal consideration states that the moral

importance of an interest does not depend on whose interest it

is. As Singer correctly points out, the principle of equal

consideration is not a principle that requires equal treatment.18

To take a simple example, a coworker of mine who uses a 16 This is the principle endorsed by Peter Singer, though I argue that the principle entails radical abolitionism rather than the welfarist view defendedby Singer. (See Peter Singer, Animal Liberation. Avon Books (1975), pp. 8-9).17 For present purposes, we can proceed with a thin understanding of what it is to have interests. Broadly speaking, an individual has interests when it ispossible for things to go better or worse for that individual (see n.9), according to the best account of “better for” and “worse for.” When things cango better or worse in some particular respect, then we can say of that individual that he or she has a particular interest, an interest in having things go better in that respect. Some interests are derivative; because beingpunched in the face will tend to cause me pain, and I have an interest in not being in pain, I also have an interest in not being punched in the face. It need not be the case that one have the concept of an interest in order to haveinterests, though it is possible that I can have interests grounded in the importance of my interests to me. 18 Singer, Animal Liberation (pp. 3, 16-17, 21). See also Alasdair Cochrane, “Ownership and Justice for Animals,” Utilitas 21:4 (p. 434).

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wheelchair due to physical disability or injury has the same

interest as I do in gaining easy entry to our workplace, but in

her case the protection of this interest requires the provision

of ramps and elevators while in my case it does not. The same

interest may be protected or advanced by different means, and

different beings may have different interests which call for

protection or advancement. And as Donaldson and Kymlicka have

argued, it is true both that non-human animals do not all share

the same set of interests (just as all humans do not share the

same set of interests), and that differently situated animals are

impacted differently by human activity, so that domesticated

animals, for example, have a need of human care that wild

animals, who avoid areas of human settlement, do not. Again,

equal consideration of interests does not always entail equal

treatment of the individuals whose interests are at stake.

In order to see the different roles that interests play in

political and ethical theory, let us consider a well-known case

introduced by Bernard Williams in his critique of utilitarianism:

one person, whom Williams calls Jim, is offered the choice of

shooting one prisoner in a group of twenty, with the consequence

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that the other nineteen are freed, or refusing to shoot the one

prisoner, with the consequence that all twenty prisoners are

killed by a member of a death squad.19 (Williams discusses the

case in order to raise several criticisms of utilitarianism, none

of which are particularly pertinent here. It is also not

particularly important that in Williams’ case, the prisoner Jim

kills, if he does kill one, would have been killed anyway by the

death squad if Jim had refused to shoot anyone.) Many people,

maybe even most, think that Jim should shoot one prisoner to save

nineteen. And a fair few of those people think that this case

is easy, that Jim obviously should shoot one of the prisoners.

So, many of us think that it is permissible and probably

even obligatory to subject one prisoner to treatment that is

seriously prima facie wrong—to sacrifice his interests for the

sake of the interests of others. There are a number of moral

principles that could yield this conclusion; we needn’t settle on

one here. The point is that the principle we settle on may very

well be—and probably should be—compatible with a principle which

says that that prisoner’s interests are just as morally important

19 Bernard Williams and J.J.C. Smart, Utilitarianism: For and Against. Cambridge University Press (1973), pp. 98-99.

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as the interests of any other prisoner. Certainly, we act against

his interests, but we also count them. There is a difference

between the judgment that the moral value of an individual’s

interest is outweighed by the moral value of others’ interests,

and the judgment that the individual is not one whose interests

need to be attended to, or who even has such interests at all.

Some moral principles will allow for partiality, at least in

certain contexts. Those principles may not require us to give

equal weight to the interests of each prisoner, and may in fact

forbid us from doing so. (Maybe there are moral reasons to prefer

one prisoner’s interests over another—maybe your mother is

justified in preferring your well-being to mine, at least within

limits.) But the key point is this: whether our principles tell

us that it is obvious that Jim should shoot the prisoner, or

whether our principles tell us that we may, and perhaps should,

be partial to certain people in certain contexts, no plausible

principle permits or requires the creation of a social class of

moral patients—membership in which is determined on morally

arbitrary grounds—whose role is to get shot when shooting someone

would make things go best overall.20 Not even utilitarianism

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could permit this; the creation of such an institution

permanently discounts the interests of the individuals who

comprise it, violating the principle of equal consideration.

At this point, we have left the realm of interpersonal

ethics and entered the realm of social and political philosophy.

The issue now is not the treatment to which we are permitted to

subject a particular person, but structure of the institutions

that form the background against which we make those judgments.

Across a range of views about the ethics of shooting this or that

person, the designation of a group of people as scapegoats

is unjust. It systematically devalues the interests of group

members so that any subsequent moral calculus will tend to favor

the interests of non-members when the moral question at hand is

one to which this institution, and one's status within it, is

thought to be relevant. Once this institution exists, these

people and their interests simply count for less. Such an institution

runs afoul of the principle of equal consideration.20 While I believe that sentient animals have an interest in continuing to live, I do not have space to argue for that claim here. The point I want to emphasize here is that justice precludes the systemic discounting of interests; the precise interests that animals have is an issue that will have to be taken up elsewhere. For present purposes, it matters only that animals have some interests that are (as I argue in section V) incompatible with animal commodification.

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This seems to be why we think that an institution like human

chattel slavery is unjust regardless of the treatment of any

particular slaves by any particular slaveowners. Consider the

following scenario:

Benevolentia: Benevolentia is a society in which ownership of some humans by other

humans is recognized. This ownership status involves all of the standard incidents of

property. As it happens, all of the slaves in Benevolentia have been bought and are now

owned by individuals opposed to slavery, but who doubt that legislation abolishing

slavery is likely to be passed in Benevolentia in the near future. They treat all of their slaves as members of their own households, with no intent to sell them, mistreat them, or employ them as uncompensated laborers. These slaveowners view this as the most practical way to improve the lot of slaves in Benevolentia at the present time. The individuals they own, though they have the legal status of slaves, are (let us stipulate) reasonably satisfied with their lives andeven prefer their current circumstances over any other scenario they might find themselves in under the current law and within the jurisdiction of Benevolentia.

In Benevolentia, no one is poorly treated, and everyone has (we

may stipulate) a life well worth living. As an ethical matter, no

agent seems to be acting wrongly. Nevertheless, Benevolentia is

an unjust society. Though the slaves are in fact treated with

consideration by those moral agents with whom they interact, this

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norm is not woven into the structure of the relevant social

institutions. The slaveowners could, as a matter of law, treat

their slaves much less well than they actually do; they simply

choose not to treat them in that way. The point I want to

emphasize here is that individual compliance with first-order

ethical principles does not ensure institutional compliance with

second-order principles of justice.

Would it make a difference if the laws of Benevolentia

required slave owners to treat their slaves well? Would it make a

difference if the law required slave owners to provide their

slaves with adequate shelter, nutritious food, some minimal

amount of physical liberty? It would perhaps make some

difference; we would likely judge their institution of slavery to

be even more offensive to our sense of justice if it did not

include such provisions, since the interests of slaves are even

more heavily discounted than they are under a regime with some

protections. But would we consider it just? Would we think that

campaigns aimed at the passing of such legislation were aimed at

the end of justice? I strongly suspect that most of us are

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radical abolitionists and not reformists about human chattel

slavery, and that we do not think either of these things.

We do, however, think these things when the lives and well-

being of non-human animals are at stake. It is true, after all,

that though the law regarded Michael Vick’s dogs as his property,

it also prohibited his use of those dogs for the purposes to

which he put them. Some welfarists argue that the commodification

of animals is compatible with the existence of adequate legal

protection of animals’ interests, even though the same is not

true of humans; Robert Garner, for example, argues for this

conclusion from the premise that animals (unlike humans) do not

have an interest in liberty but do have an interest in not being

made to suffer unnecessarily.21 Welfarists like Garner argue that

the slaves’ lives really are worse than the lives of animals

whose liberty of movement is restricted, since the human slaves

are autonomous agents who know that they live in a condition of

slavery, and that compounds the wrong done to them because

ownership of a human person runs afoul of that person’s self-

conception as a being with inherent worth. This argument can be

21 Robert Garner, The Animal Rights Debate: Abolition or Regulation? (with Gary L. Francione). Columbia University Press (2010), pp. 141-43.

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defused: imagine that the human slaves are all currently

toddlers, too young to do work and too young to understand that

they are slaves, but nevertheless owned. Their circumstances are

unjust now, even though they lack the conceptual resources to

view their condition as one of slavery. Or imagine that the

slaves are all severely mentally disabled and have no concepts of

ownership, slavery, fairness, or justice. Their circumstances are

still unjust. Again, restricting your liberty is different from

thinking of you as mine. One might restrict the liberty of a

child or someone who is mentally disabled, and with justification

(which nearly always involves an appeal to that individual’s own

good), but one does not own that person. One can lack an interest

in (what we think of as) liberty, but still have an interest in

not being property because being another’s property involves more

than simply a restriction of one’s liberty.

Garner concludes that since animals do not have an interest

in liberty, but only an interest in not being subjected to

unnecessary suffering, measures which aim to decrease the amount

of animal suffering are legitimate goals of the animal protection

movement, even if these measures do not challenge the resource

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paradigm. We need not worry about animal commodification or

animal use per se, since animals’ interests can be protected

within the resource paradigm. The abolitionist, according to this

line of argument, is advocating for the protection of interests

that animals simply do not have—like an interest in liberty. In

short, we should be radical abolitionists about human

exploitation, but welfarists about animal exploitation.

IV. The Injustice of the Resource Paradigm

Let us suppose, for the sake of argument, that non-human

animals do not have an interest in liberty. The problem with

Garner’s welfarist position is that commodification involves

quite a bit more than just a restriction of an individual’s

liberty, and does in fact discount the interests that animals

actually have. In order to see why, we need to consider more

carefully what property is. Tony Honoré has argued that in any

society that has a concept of ownership, the contours of that

concept are defined by eleven standard “incidents,” the first of

which is the right to possess the thing that is owned.22 In a

22 Honoré, “Ownership,” pp. 905-906.

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simple sense that applies easily to concrete objects, this

amounts more or less to a right of physical control over the

thing owned. Garner suggests that since animals do not have a

right not to be physically controlled (but only a right not to be

made to suffer unnecessarily), the protection of their rights is

compatible with their ownership by humans.23 But this collapses

the entire concept of property into just one of the eleven

incidents of ownership. The seriousness of this error becomes

immediately apparent when we consider some of the remaining ten

incidents of ownership. Among these are the right to use the

thing, the right to manage the thing (which includes a right to

decide how and by whom the thing will be used), the right to the

income (to allow others to use the thing for a profit), and the

right to the capital (the right to alienate, consume, waste, or

destroy all or part of the thing, though not to use or destroy

the thing in such a fashion that others are harmed by that

activity). Given that property amounts to much more than simply a

right to possess and control a thing, we cannot conclude that

animals may be treated as property simply because they do not

23 Garner, The Animal Rights Debate, pp. 128-29.

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have the right (if indeed they do not have it) not to have their

liberty restricted.

On the other hand, it is not obvious that this conception of

property entails that animals may not be treated as property.

Alasdair Cochrane, for example, uses Honoré’s account of

ownership to generate an incisive critique of the thesis that the

property status of animals is unjust.24 Starting from the

observation that “[i]n Honoré’s scheme the concept [of ownership]

conveys that the owner has a certain bundle of rights, duties,

liabilities, and so on, drawn from the pool of incidents he

outlines,” Cochrane argues that ownership, conceived as some

package of these rights, duties, and liabilities for which no

particular incidents are (jointly) necessary for the

classification of some item as one’s property, is compatible with

a theory of justice for animals that includes the principle of

equal consideration.25 He concludes that “it is perfectly

possible to enjoy rights to possess, use, manage, derive income,

and buy and sell an entity, without treating that entity solely

in terms of its market value.”26 The view that the property

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status of animals is inherently unjust is, according to Cochrane,

based on an absolutist conception of property according to which

one can do anything one likes with (and to) one’s property, short

of using it in a way that violates the rights of others—in other

words, a conception of property according to which all of the

standard incidents are regarded as jointly necessary for a

thing’s falling under the concept of property. Furthermore,

Cochrane points out, there is no reason in principle why an

entity that is property cannot also have rights, since there are

actual entities, such as corporations, that are both owned and

regarded as the bearers of legal rights.27 The question, then, is

whether animals, given the sorts of entities they are, can be

subject to some of the incidents of ownership—and especially to

those regarded as central to our concept of property—while still

enjoying equal consideration of the interests that they actually

have.

If animals have any interests at all, then subjecting them

to certain standard incidents of property clearly ignores or

24 Cochrane, “Ownership and Justice for Animals.”25 Ibid., p. 427.26 Ibid., p. 429.27 Ibid., p. 432.

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discounts those interests. In particular, it does not take a

great deal of imagination to see how the right to the capital—

encompassing the rights to alienate and destroy the thing owned—

is incompatible with the equal weighting of animals’ interests.

But Cochrane argues that the incidents at the core of our

conception of ownership—the rights to possess, use, and transfer

the thing owned—are compatible with respect for animals’

interests.28 Rather than respond to Cochrane’s arguments

directly, I aim to put pressure on his overall argumentative

strategy, which is to demonstrate that it is possible for humans

to have these rights over animals without those animals being

made to suffer needlessly, or otherwise having their interests

discounted. We can formalize Cochrane’s argument as follows:

1. Possession (understood as restriction of freedom) is something to which we do not object across the board even inthe case of human children, so there is no across-the-board objection to possession when the case involves animals.

2. Non-lethal use of animals that does not cause suffering is consistent with full respect for the interests of those animals, provided that those animals are not treated exclusively as means to human ends.

28 The right to transfer is subsumed under Honoré’s incident of the right to the capital; it is the power to alienate the thing owned.

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3. At least some transferals of animals (including sales) are consistent with full respect for those animals’ interests, provided that the transfer does not cause suffering.

4. The rights to possess, use, and transfer items are at the core of our concept of property.

5. Therefore, the property status of animals is compatible withfull respect for the interests of animals.

For present purposes, I will grant the truth of all of the

argument’s premises. I assume, in short, that there can be some

limited notion of “animal property” involving possession, use,

and transfer of animals that does not directly harm the

particular animals possessed, used, or transferred. The problem

is that the argument is invalid, for it requires two false

assumptions: first, that the rights of possession, use, and

transfer of an animal can only harm that animal if the animal is

killed or made to suffer as a direct result of being possessed,

used, or transferred; second, that if that animal’s interests are

not compromised, then the animal’s possession, use, or transfer

is morally permissible. Both assumptions are false for the same

reason: that while instances of possession, use, and transfer may

possibly not violate the interests of an individual, the systematic

treatment of that individual as the kind of entity that can be

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possessed, used, and transferred constructs that entity and

others like it (or him, or her) as an object29, and when that

entity is a moral patient with interests, that construction as an

object subordinates the interests of that patient and similar

patients to those who benefit from the objectification of the

individual. This subordination is itself a wrong, and it can

occur even when the individual so constructed is not directly

harmed in the short term.

To see how social practices can be morally problematic in

virtue of their role in constructing individuals as subordinate,

consider Marilyn Frye’s example of the door-opening ritual. Men

will often rush to open doors for women, allowing the women to

pass through the door first. It is not immediately obvious how

the act can be seen as anything other than helpful, but Frye

argues that “[t]he gallant gestures have no practical meaning.

Their meaning is symbolic. The door-opening and similar services

provided are services which really are needed by people who are

for one reason or another incapacitated—unwell, burdened by

parcels, etc. So the message is that women are incapable.”30 The

29 Note, for example, the widespread use of ‘it’, rather than ‘he’, ‘him’, ‘she’, or ‘her’ to refer to those animals we do not fetishize as pets.

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ritual is situated in a context—a constellation of practices,

norms, and understandings that give both the act and our gender

categories particular social meanings that go well beyond the

door-opening act itself, considered in isolation. The example

should suffice to show that acts which appear on their surface to

fully respect the interests of all relevant parties may in fact

function systematically to discount and distort the interests of

a great many individuals.

Cochrane’s argument quickly loses sight of the fact that the

issue is not simply the possession, use, or transfer of

particular animals whose interests are stake, but a complex array

of human social practices involving animals, practices that are

reinforced by the social position of animals and also serve to

legitimate that same (subordinate) position within the social

context. As we possess, use, or transfer an animal we need not

believe that we are treating that animal as an object in order

for our actions to objectify that animal and other animals. We

are, as Tom Regan observed, actors in a system that allows us to

regard animals as our resources, and “once we accept this view of

30 Marilyn Frye, The Politics of Reality: Essays in Feminist Theory. Crossing Press (1983), p. 7.

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animals—as our resources—the rest is as predictable as it is

regrettable.”31 To focus on the particular animal who is at some

time possessed, used, or transferred while bracketing the wider

effects of the practices in question is to miss the social forest

for the moral trees.

The point that our practices construct animals as objects is

important for two reasons. First, many of the animals exploited

in the service of humans’ ends are not anyone’s legal property;

they are wild or liminal animals.32 Still, they are regarded by

humans as the kinds of things that can be appropriated (by capture or

killing) and converted to property. Their status within the

operative framework of human institutions cannot simply be read

off of their legal status, since they have none at all—not even

the status of property. I have devoted considerable attention in

this section to the property status of animals, but when we step

back from that particular institution to ask what is unjust about

it, the answer—that it constructs sentient beings as things, as

31 Tom Regan, “The Case for Animal Rights,” In Defense of Animals (ed. P. Singer). Basil Blackwell, Inc.32 Alasdair Cochrane, An Introduction to Animals and Political Theory. Palgrave Macmillan (2010), p. 67.

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resources to be used by humans—has tremendous significance for a

wide range of human institutions, norms, and practices.

Second, it is precisely here that the distinction between

right action and justice is to be drawn. I may never actually do

to you the things that run counter to your interests, and so

never treat you wrongly, but a system that institutionalizes,

even informally, the view that you are the sort of object to

which I could do these things is a system that discounts your

interests relative to mine. It is a framework that is unjust,

independently of how I or anyone else chooses to behave.

Similarly, a framework that institutionalizes this view of

animals is unjust, independently of how any particular humans

choose to treat any particular animals. Again, the implications

are far-reaching. Confining themselves to the current paradigm,

for example, some people will acknowledge that practices such as

animal farming and hunting are morally problematic but will

resist the view that domesticated “pets” are victims of injustice

(as long as they are well-treated). If my argument here is sound,

then “pet” ownership is an unjust institution. The practice of

living with companion animals may not be, depending on the

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background social conditions, but presently we and our companion

animals find ourselves in a situation very much like

Benevolentia, wherein animal companionship is inseparable from

the property status of animals even under the best of

circumstances. A comprehensive theory of justice for animals

would need to investigate such arrangements in great detail; I

hope, at the very least, to have shown that an apparently benign

practice must be evaluated within the broader social context in

which it is situated.33

V. Conclusions

I have argued that we can appeal to a moral principle with

wide appeal—the principle of equal consideration—to show that the

resource paradigm is unjust, and in so doing I hope to have

pointed the way toward a fuller account of justice for animals.

If the resource paradigm is unjust, then radical abolitionism

deserves more attention that it has received in philosophical

circles as well as within the animal advocacy movement, because

33 See Carol J. Adams, The Sexual Politics of Meat: 20th Anniversary Edition. Continuum (2010); Carol J. Adams, “Bringing Peace Home: A Feminist Perspective on the Abuse of Women, Children, and Pet Animals,” Hypatia 9:2 (1994), pp. 63-84). Seealso MacKinnon, “Of Mice and Men”.

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radical abolitionism often strikes us as a plausible view when we

are confronted with injustices borne by humans. It does not

matter from the point of view of justice how particular people

treat particular slaves (though this is important from the

ethical point of view), and so institutional reforms that provide

for improved treatment of slaves, while leaving their status as

slaves intact, do not address the underlying injustice. Likewise,

from the point of view of justice it does not matter how

particular humans treat particular animals, and so reforms that

require better treatment for animals without challenging the

current paradigm do little to address the injustices of animal

commodification and the collective understanding that animals are

the resources of humans.34 To that end, we should commit

ourselves explicitly to a withdrawal of support for the resource

paradigm; this entails a commitment to veganism and vegan

activism.35

34 This does not necessarily preclude an incremental approach to achieving justice for animals, though it is beyond the scope of this paper to explore that question in detail. For an exploration of the possibility of incremental abolitionist change, see Francione, Rain Without Thunder, ch. 7.35 I rely here on the principle defended by Thomas Pogge: that those who uphold unjust schemes bear responsibility for the injustice, and must either “discontinue their involvement” or, if that is not possible, compensate the victims of the injustice for which they are responsible. (See Thomas Pogge, World Poverty and Human Rights. Polity (2002) pp. 23, 49-50.)

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It is my hope that the philosophy of animal rights will

continue to move in this direction—that it will take structural

wrongs rather than interpersonal harms as its central concern,

and that it will place ever greater emphasis on the resource

paradigm. The future of animal ethics is a paradigm shift in our

thinking about animals.

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