Animal Rights Law - Chapter 2

Chapter 2 - Welfarism vs Abolitionism: a Dichotomy?

Introduction

For supplementary perspectives on the (in)effectiveness of animal protections laws (and animal protection more generally) that highlight psychological and discursive issues, see illustratively: Steven J Bartlett, ‘Roots of Human Resistance to Animal Rights: Psychological and Conceptual Blocks’ (2002) 8 Animal Law 143, available at https://www.animallaw.info/article/roots-human-resistance-animal-rights-psychological-and-conceptual-blocks; Andrew Linzey, ‘How We Minimise Animal Suffering and How We Can Change’, Why Animal Suffering Matters: Philosophy, Theology, and Practical Ethics (Oxford University Press 2013), available at https://academic.oup.com/book/3603/chapter/144899483, Les Mitchell, ‘Chain of Fools: The Language of Power’ in Andrew Linzey and Clair Linzey (eds), The Palgrave Handbook of Practical Animal Ethics (1st ed. 2018, Palgrave Macmillan UK : Imprint: Palgrave Macmillan 2018), available at https://link.springer.com/chapter/10.1057/978-1-137-36671-9_5 and Arran Stibbe, ‘Counter-Discourses and the Relationship between Humans and Other Animals’ (2005) 18 Anthrozoös 3, available at https://doi.org/10.2752/089279305785594289

Classic Welfarism

For further commentary on Jeremy Bentham’s intervention into animal protection, see: Randall Otto, ‘Bentham and the “Famous Footnote”’ (2020) 23 Between the Species 155, available at https://digitalcommons.calpoly.edu/bts/vol23/iss1/6/

For an elaboration of the view that classic welfarism underpins animal protection laws, with a focus on the United States, see: Darian M Ibrahim, ‘The Anticruelty Statute: A Study in Animal Welfare’ (2006) 1 Journal of Animal Law and Ethics 175, available at https://scholarship.law.wm.edu/facpubs/1680/. For a similar argument focused on English law, with comparisons to the United States and New Zealand, see: Lee McConnell, ‘Property Status and the Limited Impact of Welfare Legislation for Farm Animals’ 9 Journal of Animal and Natural Resource Law 63, available at https://www.animallaw.info/policy/journal-animal-and-natural-resource-law-vol-9. For a similar argument focused on Canadian law, see: Maneesha Deckha, ‘No Escape: Anti-Cruelty Laws’ Property Foundations’, Animals as Legal Beings: Contesting Anthropocentric Legal Orders (University of Toronto Press 2021), available at https://www.degruyter.com/document/doi/10.3138/9781487538248-003/html

For an expanded account of Francione’s critique of classic welfarism, see: Gary L Francione, ‘Animals, Property and Legal Welfarism: Unnecessary Suffering and the Humane Treatment of Animals’ (1994) 46 Rutgers Law Review 721, available at https://heinonline.org/HOL/LandingPage?handle=hein.journals/rutlr46&div=18&id=&page=

For concise reviews of Francione’s works that critique welfarism, see: Lesli Bisgould, ‘Review of Francione’s Animals, Property and the Law’ (1996) 12 Between the Species 72, available at https://digitalcommons.calpoly.edu/bts/vol12/iss1/16/; Lesli Bisgould, ‘Animal Oppression and the Pragmatist’ (1997) 3 Animal Law 39, available at https://www.animallaw.info/article/animal-oppression-and-pragmatist

For a legal theoretical supplement to Francione’s critique of how normative legal discourse can minimise and whitewash injustice, see: Richard Delgado, ‘Norms and Normal Science: Toward a Critique of Normativity in Legal Thought’ (1991) 139 University of Pennsylvania Law Review 933, available at https://www.jstor.org/stable/3312376#metadata_info_tab_contents

Abolitionism

For an expanded defence by Francione of the view that animals have an interest in living rather than just being treated well, see: Gary L Francione, ‘Equal Consideration and the Interest of Nonhuman Animals in Continued Existence: A Response to Professor Sunstein’ [2006] University of Chicago Legal Forum 231, available at https://chicagounbound.uchicago.edu/uclf/vol2006/iss1/8/

For a general discussion of critiques and defences of abolitionism, see: Tony Milligan, ‘Abolitionism’, Animal Ethics: The Basics (Routledge 2015), available at https://www.taylorfrancis.com/books/mono/10.4324/9781315728568/animal-ethics-tony-miligan.

For a critique of Francione’s abolitionist theory, see: Cass R Sunstein, ‘Slaughterhouse Jive’ [2001] The New Republic, available at https://newrepublic.com/article/63234/slaughterhouse-jive

For a moderate defence of animal welfare approaches, drawing on social and political realities and the claim that welfare does not have to have the meaning which abolitionists attribute to it, see: Laws, Political Realities, and Social Realities in Paul Waldau, Animal Rights: What Everyone Needs to Know (Oxford University Press 2011), available at https://whateveryoneneedstoknow.com/view/10.1093/wentk/9780199739974.001.0001/isbn-9780199739974?rskey=2s4jdi&result=1

For a case study of one single-issue campaign (against sow stalls in Australia) that draws on several related fields, including literature on regulation, social movements, co-option, and economics, and which signals both benefits and detriments, see: Rachel Carey, Christine Parker, and Gyorgy Scrinis, ‘How Free Is Sow Stall Free? Incremental Regulatory Reform and Industry Co‐optation of Activism’ (2020) 42 Law & Policy 284, available at https://onlinelibrary.wiley.com/doi/abs/10.1111/lapo.12154

For an empirical argument that animal welfare measures do not increase the likelihood of animal use diminishing, see: Larkin Ormes, ‘Do Animal Welfare Laws Reduce Animal Product Consumption?’ (Master’s thesis, Harvard University 2022), available at https://dash.harvard.edu/handle/1/37370750

New Welfarism

For an approach that is similar to new welfarism in viewing welfare and rights measures as being on a continuum, but from the perspective of accountability literature, see: Eija Vinnari and Markus Vinnari, ‘Accounting for Animal Rights’ in Jan Bebbington and others (eds), Routledge Handbook of Environmental Accounting (Routledge 2021), available at https://www.taylorfrancis.com/chapters/edit/10.4324/9780367152369-34/accounting-animal-rights-eija-vinnari-markus-vinnari; Eija Vinnari and Markus Vinnari, ‘Making the Invisibles Visible: Including Animals in Sustainability (and) Accounting’ (2022) 82 Critical Perspectives on Accounting 951-974, available at https://www.sciencedirect.com/science/article/pii/S1045235421000435?via%3Dihub;

For an argument consistent with these approaches that employs the idea of (thick) rights or personhood as an outcome or consequence of gradual legal improvements, rather than something which needs to be achieved in one categorical jump, see Eva Bernet Kempers, ‘Transition Rather than Revolution: The Gradual Road towards Animal Legal Personhood through the Legislature’ [2022] Transnational Environmental Law 1, available at https://doi.org/10.1017/S2047102522000139. For a similar distinction in the use of legal concepts, namely as ‘reasons’ or ‘conclusions’, see: Visa AJ Kurki, A Theory of Legal Personhood (Oxford University Press 2019) at 195, available at https://global.oup.com/academic/product/a-theory-of-legal-personhood-9780198844037?cc=gb&lang=en&

For a conceptual argument against the abolitionist position that animals need a right to not be owned in order to be free, and about what freedom means in this context, see: Andreas T Schmidt, ‘Persons or Property – Freedom and the Legal Status of Animals’ (2018) 15 Journal of Moral Philosophy 20-45, available at https://brill.com/view/journals/jmp/15/1/article-p20_20.xml?language=en

For an argument that abolitionism wrongly focuses on whether instrumental use and intrinsic value are compatible rather than the character of human and animal relations, see Katherine Wayne, ‘Permissible Use and Interdependence: Against Principled Veganism: Permissible Use and Interdependence’ (2013) 30 Journal of Applied Philosophy 160-175, available at https://onlinelibrary.wiley.com/doi/abs/10.1111/japp.12010

For a critique of new welfarism as underappreciating how ownership supports and normalizes oppressive social practices, even if ownership and respect for animal interests are conceptually compatible, see: Jason Wyckoff, ‘Toward Justice for Animals’ (2014) 45 Journal of Social Philosophy 539, available at https://onlinelibrary.wiley.com/doi/abs/10.1111/josp.12077. For an expansion on the structural and systemic approach Wyckoff recommends, see: Jason Wyckoff, ‘Analysing Animality: A Critical Approach’ (2015) 65 The Philosophical Quarterly 529, available at https://academic.oup.com/pq/article/65/260/529/1545094

For an argument that new welfarism pursues means and ends that are incoherent which draws on critical theory and Continental philosophy, see: Jan-Harm De Villiers, ‘Animal Rights Theory, Animal Welfarism and the “New Welfarist” Amalgamation: A Critical Perspective’ (2017) 30 Southern African Public Law 406-433, available at https://unisapressjournals.co.za/index.php/SAPL/article/view/3587

For a critical review of Francione’s critiques of new welfarism, see: Petra Renee Wicklund, ‘Abrogating Property Status in the Fight for Animal Rights (Book Note)’ (1997) 107 The Yale Law Journal 569, available at https://www.jstor.org/stable/797265#metadata_info_tab_contents

For a defence of incremental reform strategies, see: Bruce Friedrich, ‘Getting from A to Z: Why Animal Activists Should Support Incremental Reforms to Help Animals’ (The Blog, 21 February 2011), available at https://www.huffpost.com/entry/getting-from-a-to-z-why-p_b_825612

Beyond the Dichotomy

For an argument that moves beyond welfarism and rights as a dichotomy by arguing that the two concepts and their underlying values entail each other and hence are complementary, see: Nibedita Priyadarshini Jena, ‘Animal Welfare and Animal Rights: An Examination of Some Ethical Problems’ (2017) 15 Journal of Academic Ethics 377-395, available at https://link.springer.com/article/10.1007/s10805-017-9282-1

For a critique of the welfarism and rights dichotomy as constraining animal law discourse, see: Jessica Eisen, ‘Of Linchpins and Bedrock: Hope, Despair, and Pragmatism in Animal Law’ [2022] University of Toronto Law Journal, available at https://utpjournals.press/doi/10.3138/utlj-2021-0127

For supplementary perspectives that focus on the generation of dialogue rather than welfare or rights, see: Jessica Eisen, ‘Beyond Rights and Welfare: Democracy, Dialogue, and the Animal Welfare Act’ [2018] University of Michigan Journal of Law Reform 469, available at https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1207&context=mjlr; Peter Sankoff, ‘The Animal Rights Debate and the Expansion of Public Discourse: Is It Possible for the Law Protecting Animals to Simultaneously Fail and Succeed?’ (2012) 18 Animal Law 281, available at https://www.animallaw.info/article/animal-rights-debate-and-expansion-public-discourse-it-possible-law-protecting-animals

For elaborations on a recent alternative rights account promoted by Angela Fernandez that seeks to move beyond the welfarism and rights dichotomy, see: Angela Fernandez, ‘Not Quite Property, Not Quite Persons: A “Quasi” Approach for Nonhuman Animals’ (2019) 5 The Canadian Journal of Comparative and Contemporary Law 155, available at https://canlii.ca/t/skr0; Angela Fernandez, ‘Animals as Property, Quasi-Property or Quasi-Person’ [2021] Brooks U (Working Paper) 1, available at https://thebrooksinstitute.org/sites/default/files/presentations/Animal%20Law%20Fundamentals%20-%20Angela%20Fernandez_1.pdf

Conclusion

For an argument in favour of a legal category in between personhood and property that addresses many of the themes in this chapter, see chapters one, three, and five in Sharisse Kanet, ‘Legal Purgatory: Why Some Animals Are Neither Persons nor Property’ (PhD thesis, City University of New York 2021), available at https://academicworks.cuny.edu/gc_etds/4114/

For a detailed comparison of welfare and rights approaches as applied to animal protection law in the United States context, see: Ruth Payne, ‘Animal Welfare, Animal Rights, and the Path to Social Reform: One Movement’s Struggle for Coherency in the Quest for Change’ (2002) 9 Virginia Journal of Social Policy & the Law 587-643, available at https://heinonline.org/HOL/LandingPage?handle=hein.journals/vajsplw9&div=28&id=&page=; for an applied comparison in the context of the Brazilian Federal Constitution, see: Amanda Formisano Paccagnella and Patricia Borba Marchetto, ‘Animal Welfare versus Animal Abolitionism: A Comparison of the Theories by Peter Singer and Tom Regan and Their Influence on the Brazilian Federal Constitution’ (2019) 20 Revista de Direitos e Garantias Fundamentais 251, available at https://sisbib.emnuvens.com.br/direitosegarantias/article/view/1493

For general treatments of many of the themes in this chapter, see: Jane Kotzmann and Nick Pendergrast, ‘Animal Rights: Time to Start Unpacking What Rights and for Whom’ (2019) 46 Mitchell Hamline Law Review 158-200, available at https://open.mitchellhamline.edu/mhlr/vol46/iss1/6/?utm_source=open.mitchellhamline.edu%2Fmhlr%2Fvol46%2Fiss1%2F6&utm_medium=PDF&utm_campaign=PDFCoverPages and Elizabeth L DeCoux, ‘Speaking for the Modern Prometheus: The Significance of Animal Suffering to the Abolition Movement’ (2009) 16 Animal Law 9, available at https://ssrn.com/abstract=1677173

For a sophisticated critique of welfarism as a ‘master-frame’ that dominates animal protection reform discourse with detrimental effects, and which addresses many of the themes in this chapter, see: Singer’s Utilitarianism or 'New Welfarism', Regan's and Francione’s Animal Rights Theories, and the Philosophical Inconsistencies in the Contemporary 'Animal Rights Movement’ in Roger Yates, ‘The Social Construction of Human Beings and Other Animals in Human-Nonhuman Relations: Welfarism and Rights, a Contemporary Sociological Analysis’ (PhD thesis, Bangor University 2004), available at https://research.bangor.ac.uk/portal/en/theses/the-social-construction-of-human-beings-and-other-animals-in-humannonhuman-relations--welfarism-and-rights-a-contemporary-sociological-analysis(dc9c2bbf-669f-4dbd-83b5-2993c7e8a9b0).html