Regan and Francione.
Benton and Redfearn [1] state that, as a matter of historical record, "the ethics of the 'rights' tradition has been markedly anthropocentric. To 'qualify' as an inherently valuable being one had to possess 'reason,' 'autonomy,' 'moral agency' or some other capacity generally restricted to humans."
Tom Regan, they go on, gets morality over the species barrier by concentrating on the criteria of right holding, a familiar notion in rights discourse addressing the question of the expansion of rights bearing. Clearly, many human beings do not have the characteristics listed above, neither do many have language use, another favoured way of deciding who holds rights. There is therefore a philosophical puzzle to be solved here. Either human beings without the above capacities are themselves not right holders or, if they remain so, on what basis are nonhumans, with similar capacities, to be denied at least basic or negative rights?
In general rights discourse, the notion that rights have been converted from shields to swords is seriously contested by various theorists: however, in the formulation in view, the idea of animal rights is clearly about rights as protective shields for individuals. Regan’s "subjects-of-a-life" are not necessarily moral agents; and logically other animals are placed into the category of right holding moral patients along with certain "marginal" humans (as they have became known in rights discourse). Using a post-Darwinian understanding of the psychological complexity of many nonhuman animals, Benton and Redfearn claim that Regan shows that, "though animals are not moral agents in the full sense, they have enough sense of self as persisting through time, ability to express preferences and so on to be said to have 'interests,' which may be harmed or favoured by human agents."
Benton and Redfearn investigate the "lesser-than" aspect of "moral marginals" and conclude that not only are they not denied protective rights, "on the contrary, it might well be argued that it is just because of their lack of these attributes that they are in special need of the protection offered by the attribution of rights."
For these commentators, Regan’s concentration on the rights of the individual strengthens the rights approach over what they describe as the more moderate "linkage of utilitarianism and animal welfare reform." The one advantage of utilitarianism, they claim, is its reliance on "mere sentience" as the ethically relevant criteria. The strength of that, they say, is due to the fact that hardly anyone in the modern world would dispute that many other animals are sentient beings.
A further "strategic limitation" of Regan’s position, Benton and Redfearn argue, stems from the huge social and personal changes implied by respect for the rights of many nonhuman animals.[2] This would require "both social transformation and lifestyle changes of very fundamental kinds." How many, they ask, will be prepared to adopt a vegan diet and avoid all animal products? Surely, only those who could adhere to vegan philosophy can remain consistent with the logic of animal rights? Some animal advocates suggest that a strict advocacy of just the vegan diet can be "divisive" "purist," and "elitist," whereas theorists such as Francione simply see it as a logical consequence of accepting the rights view about human relations with other sentient beings.[3]
Francione’s position is free of the first "limitation" in Regan – but clearly not of the second. In other words, Francione’s basic right theory argues that a being’s sentience alone is enough to demand that humans recognise and respect their rights. Francione, as said, firmly declares that respect for other animals' rights does indeed require the personal adoption of veganism. Francione begins his outline of animal rights with a familiar warning common in accounts of rights discourse: "There is a great deal of confusion surrounding the concept of rights."[4] His focus is on one aspect of rights, the protection they may offer, and argues that this is common feature of virtually every theory about rights: in other words, "a right is a particular way of protecting interests":
A feature of rights formulation associated with other animals often clash with the views of environmental ethicists such as "deep ecologists."[5] Dispute may arise due to the concentration in rights thinking on protecting individuals rather than emphasising, say, "species conservation." However, citing Rollin’s "The Legal and Moral Bases of Animal Rights," Francione notes that rights were deliberately constructed as ethical ideas about respecting individuals. Rights protect individuals even in cases in which the general welfare of society would be improved by the right being ignored or not respected.
Francione provides a detailed account of the concept of rights and rights theory in the context of animal law in Animals, Property, and the Law [6] in which he distinguishes respect-based rights from policy-based rights.
He argues for a basic right for sentient nonhuman animals: the right not to be treated as "things." For Francione, this basic right is not only a respect-based right but it is a special respect-based right, "in that it is necessary in order to have any rights or moral significance at all, irrespective of the political system and whatever other respect-based rights are protected. The basic right not to be treated as a thing recognises that the right holder is a person."[4]
Moving toward his conception of animal rights, while accepting that no rights are absolute, "in the sense that their protection has no exception," Francione builds on the notion that all humans "who are not brain dead or otherwise nonsentient" (and presumably who are not masochistic) have an interest in avoiding suffering and pain. This interest is tied to the importance of being a legal person:
Resisting a critical critique of this statement, if only by regarding it as an ideal type formulation, Francione’s point is fairly straightforward. In fact, he does himself acknowledge that human slavery still persists in the modern world, even though "the institution is universally regarded as morally odious and is legally prohibited." Returning to his theme about basic rights, Francione argues that all and any "further" rights are dependent on basic ones, in particular "they must have the basic right not to be treated as a thing." By examining the principle of "equal consideration" which says that similar interests should be treated in a similar way, Francione makes the case for animal rights, at least the case for the basic right that concerns him the most:
As a matter of logic, then, Francione claims that "if we mean what we say" about other animals being morally significant, as even traditional animal welfare does, "then we really have no choice:" if social attitudes to human slavery desire its abolition rather than its regulation, "we are similarly committed to the abolition of animal exploitation, and not merely to its regulation."
In his version of animal rights, Francione focuses on notions of basic or "innate" rights, distinctions about ideas of "natural rights," and the thoughts of, among others, Kant, Locke, and modern political theorist Henry Shue, and so builds on the widely accepted "value" of basic human rights. He argues that, "there is certainly a great deal of disagreement about precisely what rights human beings have," however it is clear that all humans are seen as right holders which prevents them being "treated exclusively as a means to the end of another."
In pointing out that this basic right is different from "all other rights," Francione claims it as a pre-legal right; and a necessary pre-requisite for other important rights. What is the use, Francione asks, of thinking about rights appropriate to human beings, such as the right to free speech, voting rights, etc., if their basic right not to be a thing is not respected? Gary Francione’s formulation of basic rights is extremely attractive.
Human animals would do well if they were to recognise and acknowledge that their basic rights were in fact their animal rights.
[1] Benton, T. and Redfearn, S. (1996) "The Politics of Animal Rights - Where is the Left?" New Left Review, Jan/Feb: 43-58.
[2] Benton and Redfearn note that Regan’s rights approach will find opposition in some perspectives based on "ecological morality." For example, the rights view implies that only animals that resemble humans in relevant ways "qualify" as right bearers. Regan’s theory, they note, "offers nothing at all to animals not conforming to the ‘subject of a life’ criterion."
[3] Francione, G. L. (1996) Rain Without Thunder: The Ideology of the Animal Rights Movement. Philadelphia: Temple University Press.
[4] Francione, G.L. (2000) Introduction to Animal Rights: Your Child or the Dog? Philadelphia: Temple University Press.
[5] Regan, T. (2001) Defending Animal Rights. Urbana & Chicago: University of Illinois Press; David Orton. Discussion paper about Deep Ecology and Animal Rights, http://home.ca.inter.net/~greenweb/DE-AR.html
[6] Francione, G.L. (1995) Animals, Property, and the Law. Philadelphia: Temple University Press.
Benton and Redfearn [1] state that, as a matter of historical record, "the ethics of the 'rights' tradition has been markedly anthropocentric. To 'qualify' as an inherently valuable being one had to possess 'reason,' 'autonomy,' 'moral agency' or some other capacity generally restricted to humans."
Tom Regan, they go on, gets morality over the species barrier by concentrating on the criteria of right holding, a familiar notion in rights discourse addressing the question of the expansion of rights bearing. Clearly, many human beings do not have the characteristics listed above, neither do many have language use, another favoured way of deciding who holds rights. There is therefore a philosophical puzzle to be solved here. Either human beings without the above capacities are themselves not right holders or, if they remain so, on what basis are nonhumans, with similar capacities, to be denied at least basic or negative rights?
In general rights discourse, the notion that rights have been converted from shields to swords is seriously contested by various theorists: however, in the formulation in view, the idea of animal rights is clearly about rights as protective shields for individuals. Regan’s "subjects-of-a-life" are not necessarily moral agents; and logically other animals are placed into the category of right holding moral patients along with certain "marginal" humans (as they have became known in rights discourse). Using a post-Darwinian understanding of the psychological complexity of many nonhuman animals, Benton and Redfearn claim that Regan shows that, "though animals are not moral agents in the full sense, they have enough sense of self as persisting through time, ability to express preferences and so on to be said to have 'interests,' which may be harmed or favoured by human agents."
Benton and Redfearn investigate the "lesser-than" aspect of "moral marginals" and conclude that not only are they not denied protective rights, "on the contrary, it might well be argued that it is just because of their lack of these attributes that they are in special need of the protection offered by the attribution of rights."
For these commentators, Regan’s concentration on the rights of the individual strengthens the rights approach over what they describe as the more moderate "linkage of utilitarianism and animal welfare reform." The one advantage of utilitarianism, they claim, is its reliance on "mere sentience" as the ethically relevant criteria. The strength of that, they say, is due to the fact that hardly anyone in the modern world would dispute that many other animals are sentient beings.
A further "strategic limitation" of Regan’s position, Benton and Redfearn argue, stems from the huge social and personal changes implied by respect for the rights of many nonhuman animals.[2] This would require "both social transformation and lifestyle changes of very fundamental kinds." How many, they ask, will be prepared to adopt a vegan diet and avoid all animal products? Surely, only those who could adhere to vegan philosophy can remain consistent with the logic of animal rights? Some animal advocates suggest that a strict advocacy of just the vegan diet can be "divisive" "purist," and "elitist," whereas theorists such as Francione simply see it as a logical consequence of accepting the rights view about human relations with other sentient beings.[3]
Francione’s position is free of the first "limitation" in Regan – but clearly not of the second. In other words, Francione’s basic right theory argues that a being’s sentience alone is enough to demand that humans recognise and respect their rights. Francione, as said, firmly declares that respect for other animals' rights does indeed require the personal adoption of veganism. Francione begins his outline of animal rights with a familiar warning common in accounts of rights discourse: "There is a great deal of confusion surrounding the concept of rights."[4] His focus is on one aspect of rights, the protection they may offer, and argues that this is common feature of virtually every theory about rights: in other words, "a right is a particular way of protecting interests":
- To say that an interest is protected by a right is to say that the interest is protected against being ignored or violated simply because this will benefit someone else. We can think of a right of any sort as a fence or a wall that surrounds an interest and upon which hangs a “no trespass” sign that forbids entry, even if it would be beneficial to the person seeking that entry.
A feature of rights formulation associated with other animals often clash with the views of environmental ethicists such as "deep ecologists."[5] Dispute may arise due to the concentration in rights thinking on protecting individuals rather than emphasising, say, "species conservation." However, citing Rollin’s "The Legal and Moral Bases of Animal Rights," Francione notes that rights were deliberately constructed as ethical ideas about respecting individuals. Rights protect individuals even in cases in which the general welfare of society would be improved by the right being ignored or not respected.
Francione provides a detailed account of the concept of rights and rights theory in the context of animal law in Animals, Property, and the Law [6] in which he distinguishes respect-based rights from policy-based rights.
He argues for a basic right for sentient nonhuman animals: the right not to be treated as "things." For Francione, this basic right is not only a respect-based right but it is a special respect-based right, "in that it is necessary in order to have any rights or moral significance at all, irrespective of the political system and whatever other respect-based rights are protected. The basic right not to be treated as a thing recognises that the right holder is a person."[4]
Moving toward his conception of animal rights, while accepting that no rights are absolute, "in the sense that their protection has no exception," Francione builds on the notion that all humans "who are not brain dead or otherwise nonsentient" (and presumably who are not masochistic) have an interest in avoiding suffering and pain. This interest is tied to the importance of being a legal person:
- Although we do not protect humans from all suffering, and although we may not even agree about which human interests should be protected by rights, we generally agree that all humans should be protected from suffering that results from being used as the property or commodity of another human…in a world deeply divided on many moral issues, one of the few norms endorsed by the international community is the prohibition of human slavery. Nor is it a matter of whether the particular form of slavery is “humane” or not; we condemn all human slavery.
Resisting a critical critique of this statement, if only by regarding it as an ideal type formulation, Francione’s point is fairly straightforward. In fact, he does himself acknowledge that human slavery still persists in the modern world, even though "the institution is universally regarded as morally odious and is legally prohibited." Returning to his theme about basic rights, Francione argues that all and any "further" rights are dependent on basic ones, in particular "they must have the basic right not to be treated as a thing." By examining the principle of "equal consideration" which says that similar interests should be treated in a similar way, Francione makes the case for animal rights, at least the case for the basic right that concerns him the most:
- If we apply the principle of equal consideration to animals, then we must extend to animals the one basic right that we extent to all human beings: the basic right not to be treated as things.
As a matter of logic, then, Francione claims that "if we mean what we say" about other animals being morally significant, as even traditional animal welfare does, "then we really have no choice:" if social attitudes to human slavery desire its abolition rather than its regulation, "we are similarly committed to the abolition of animal exploitation, and not merely to its regulation."
In his version of animal rights, Francione focuses on notions of basic or "innate" rights, distinctions about ideas of "natural rights," and the thoughts of, among others, Kant, Locke, and modern political theorist Henry Shue, and so builds on the widely accepted "value" of basic human rights. He argues that, "there is certainly a great deal of disagreement about precisely what rights human beings have," however it is clear that all humans are seen as right holders which prevents them being "treated exclusively as a means to the end of another."
In pointing out that this basic right is different from "all other rights," Francione claims it as a pre-legal right; and a necessary pre-requisite for other important rights. What is the use, Francione asks, of thinking about rights appropriate to human beings, such as the right to free speech, voting rights, etc., if their basic right not to be a thing is not respected? Gary Francione’s formulation of basic rights is extremely attractive.
Human animals would do well if they were to recognise and acknowledge that their basic rights were in fact their animal rights.
[1] Benton, T. and Redfearn, S. (1996) "The Politics of Animal Rights - Where is the Left?" New Left Review, Jan/Feb: 43-58.
[2] Benton and Redfearn note that Regan’s rights approach will find opposition in some perspectives based on "ecological morality." For example, the rights view implies that only animals that resemble humans in relevant ways "qualify" as right bearers. Regan’s theory, they note, "offers nothing at all to animals not conforming to the ‘subject of a life’ criterion."
[3] Francione, G. L. (1996) Rain Without Thunder: The Ideology of the Animal Rights Movement. Philadelphia: Temple University Press.
[4] Francione, G.L. (2000) Introduction to Animal Rights: Your Child or the Dog? Philadelphia: Temple University Press.
[5] Regan, T. (2001) Defending Animal Rights. Urbana & Chicago: University of Illinois Press; David Orton. Discussion paper about Deep Ecology and Animal Rights, http://home.ca.inter.net/~greenweb/DE-AR.html
[6] Francione, G.L. (1995) Animals, Property, and the Law. Philadelphia: Temple University Press.
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