"Animals, Property, and Personhood": An Essay by Gary L. Francione (Keywords: Ethics; Animal Rights; Law; Veganism; Suffering; Anthropocentrism)

Artwork by Jo-Anne McArthur

From The Philosopher, vol. 109, no. 1 ("Nothing").

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Animals: Machines and Inferiors

Before the 19th century, animals were regarded as things, at least in the West. They were seen as having no inherent or intrinsic value and as having only extrinsic or external value. They were largely excluded from the moral and legal community and not viewed as beings to whom we could have moral obligations. This exclusion was sought to be justified in several ways.

Descartes did not think that animals had any sort of subjective awareness and were, literally, machines that God made. On this view, nothing we did to or with animals could adversely affect their interests because they did not have any interests that could be adversely affected. Descartes would dissect live, conscious animals (anesthesia had not yet been invented) and he dismissed their screams as analogous to the noise that a machine made when it needed lubrication. If Descartes were right about this, then we could no more have moral obligations to animals than we could have moral obligations to machines.

Most others believed that nonhumans did have interests and they could be harmed, but that we could ignore their interests and treat them as if they were Cartesian things that did not matter morally because they were inferior to humans. This inferiority took two forms. Animals were spiritually inferior to humans because they, unlike humans, were not made in the image of God. Animals were cognitively inferior to humans because, unlike humans, they were supposedly not rational or self-aware, or able to understand concepts or to use symbolic communication.

For example, Aristotle thought that animals were not rational. Aquinas, who helped to introduce Aristotle to the West, believed that animals lacked souls and were not rational. Kant believed that animals were neither rational nor self-aware.

This is not to say that those who regarded animals as without moral value denied that we could have moral obligations that concerned animals. For example, both Aquinas and Kant maintained that if we were cruel to animals, we would be more likely to be cruel to other humans and, as we do have moral obligations to humans not to be cruel to them, we should be kind to animals.

As far as the law was concerned, animals had no legal rights. They were just pieces of property that people owned.

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The Revolution; From Things to Quasi-Persons

Our thinking about animals underwent what appeared to be a paradigm shift in the 19th century. Progressive social thought focused on the issues of slavery, the treatment of children, and suffrage resulted in consideration of the moral status of nonhuman animals. An important figure in this regard was lawyer and philosopher Jeremy Bentham (1748-1832). Bentham noted that the French had already rejected the idea that the skin color of humans should allow them to be enslaved and “abandoned without redress to the caprice of a tormentor” and added:

It may come one day to be recognised, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate? What else is it that should trace the insuperable line? Is it the faculty of reason, or, perhaps, the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month old. But suppose the case were otherwise, what would it avail? the question is not, Can they reason? nor, Can they talk? but, Can they suffer? 

Bentham thereby rejected the idea that the moral significance of animals required that they needed to have certain cognitive characteristics beyond being subjectively aware. That is, they did not have to be rational, self-aware, or be able to use symbolic communication to matter morally. As long as they could suffer, they were members of the moral community.

Bentham did not, however, think that these other cognitive characteristics were irrelevant. On the contrary. He maintained that, because animals lacked these other characteristics, they could not think abstractly about their lives and, therefore, did not have a morally significant interest in continuing to live. We could use and kill animals for human purposes – particularly for food – as long as we took care to observe and respect their interests in not suffering. If we kill and eat them, “we are the better for it, and they are never the worse. They have none of those long-protracted anticipations of future misery which we have.” Animals did not care that we killed and ate them; they cared only about how we treated and slaughtered them, and if there was little or no pain and suffering involved, then the animals were not harmed and we successfully discharged our moral obligations to them.

This idea – that animals have a morally significant interest in not suffering but do not have a morally significant interest in their lives – caught on and became our conventional thinking about animals. That is, the overwhelming number of us think that animals matter morally. They don’t matter as much as humans do. We can use and kill them for our purposes but we have a moral obligation that we owe to animals to treat them humanely and to not impose unnecessary suffering on them. If John were secretly torturing animals in his basement but were otherwise a wonderful fellow who treated other humans with great respect, most of us would still think that John was acting wrongly with respect to the animals and violating a moral obligation that he owed to them.

These ideas are not only accepted by most of us as a moral matter; they are reflected in criminal laws that impose a sanction for treating animals in a “cruel” or “inhumane” manner, and imposing “unnecessary” or “unjustifiable” suffering on them. The norms expressed in the criminal law are, or at least are supposed to be, the norms that are widely accept in the society.

The paradigm shift that occurred in the 19th century produced what we might call the animal welfare approach to animal ethics. This approach rejects the status of animals as things. But it also rejects the idea that animals have morally significant interests in their lives. That is, they are not things but they are not persons either. They are instead what I have called quasi-persons. They have a morally significant interest in “humane” treatment; they do not have a morally significant interest in not being used and killed, which is the primary characteristic we associate with personhood.

The problem is that the revolution failed: “quasi-things” is just another way to describe things.

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The Revolution Fails: From Quasi-Persons to Things

Although the animal welfare position introduced ideas that most of us embrace—animals are not just things; they are beings who matter morally and their interests are protected by the law—not much changed.

The problem is that animals remained as property. And, as a result, they were – and still are – just things and don’t really have any moral value.

Property has no intrinsic or inherent value; it has the value we accord it. We own animals. We value them. Animals are no different from anything else we own. They, unlike books, cars, and cell phones, are subjectively aware and have interests in not suffering pain and distress, and in satisfying whatever other interests they may have depending on their species. But, because they are property, we get to value those interests just as we get to value our property generally.

You can buy a case and screen protector for your cell phone. You can make sure that you charge your phone in such a way as to maximize its battery life. Or you can use your phone without any of these sorts of considerations. The choice is yours. The phone is your property. Similarly, you can treat your dog as a member of your family. You can let your dog live in the house and provide your dog with the very best quality food and veterinary care. Or you can provide your dog with a minimal quantity of the cheapest food you can find, provide no veterinary care beyond any required vaccinations, and have the dog live outside, never showing the animal a single second of affection. The choice is yours. The dog is your property. You get to value the dog just as you get to value the cell phone. If you don’t value your cell phone at all, you can throw it away. If you don’t value your dog, you can kill your dog, have a veterinarian kill your dog, or dump your dog at a municipal facility that will kill your dog if another home is not found.

We may think of animals as having moral value. But, because they are property, they don’t have moral value. They are not quasi-persons. They are just things.

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Animals as Property; A Prohibition on Imposing Unnecessary Unnecessary Suffering

We all agree that it is wrong to inflict “unnecessary” suffering on animals. But how much of our animal use can plausibly be described as necessary? That’s an easy question: the answer is almost none of it.

Our most numerically significant use of animals is for food. We kill approximately 80 billion land animals, and an estimated one trillion sea animals every year for food. To put that in perspective, every year humans kill and eat more animals than the total number of humans who have ever lived on the planet. It is not necessary to eat animal products. Indeed, many mainstream health professionals maintain that the fewer animal products we consume the better. Our only justification for eating animals is that we like the taste and eating animal bodies and products is a habit we’ve developed. So all of the suffering that results from using animals for food can be regarded as unnecessary.

The same can be said for nearly all of our other uses of animals, such as for sport and recreation, circuses, zoos, and so forth. There is no necessity. Our only use of animals that is not transparently frivolous is our use of animals to find cures for serious human illnesses or to save lives through cross-species transplants, such as the use of a heart valve from a pig to save a human with heart disease. (As an advocate for animal rights, I do not believe that using animals for these ostensibly non-frivolous purposes can be morally justified; the point is that using animals for frivolous purposes certainly cannot be justified light of what we claim to believe.)

Because animals are property, we do not ask whether particular animal uses are necessary; our uses of animals are assumed to be necessary as an exercise of our property rights over animals. Instead, we ask whether particular treatment that causes suffering is necessary to accomplish uses that are, for the most part, unnecessary.

Think about that for a second.

We say that we embrace the principle that it is wrong to inflict unnecessary suffering on animals but, because animals are property and animal use is just an exercise of property rights, that principle gets translated as a prohibition on imposing more suffering on animals than is necessary to use animals for purposes that are for the most part unnecessary. That is, we should not impose unnecessary unnecessary suffering. The prohibition on imposing unnecessary suffering is a prohibition on acting in what can only be characterized as a sadistic manner. That’s not really much of a limitation.

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Animals as Property: A Matter of Efficient Exploitation

It costs money to protect animal interests. To the extent that we spend that money, it adds to the cost of animal products. And added cost affects demand. As a general matter, the law protects animal interests only to the extent that it is necessary to do so as an economic matter. For example, it is common to have laws that require that large animals be rendered unconscious before they are shackled, hoisted, killed, and dismembered. Large animals who are conscious when hanging upside down move around a great deal. They injure workers; that costs money. They incur carcass damage; that costs money. So we require that animals be unconscious during the slaughtering process. It’s the efficient thing to do.

Standards of “humane” treatment are generally those standards that are customary or normal in the industry or among those who use animals for the specific purpose. We assume that these customs and norms reflect the judgments of rational property owners who would not impose more damage on animals than is required to use the animal for a particular purpose any more than a rational property owner would damage their car for no reason. For the most part, improvements in animal welfare are based on the improvement being an efficient thing to do. For example, many animal welfare charities are proposing that it would be more “humane” to asphyxiate chickens rather than killing them by slitting their throats. Their arguments are supported by claims that asphyxiation will reduce carcass damage and improve meat quality.

Although there are economic reasons why “humane” treatment is linked with the norms and customs of the particular usage, there is also an important legal reason. Anti-cruelty laws are generally criminal laws. We think it is wrong to impose criminal liability on people without making it clear as to what standard of behavior is expected. If we were to leave it up to individual judges to decide what is “humane,” there would be a very serious notice problem: no one could know beforehand what conduct was prohibited. If the standard is generally the norms and customs of usage, then those who interact with animals can at least have an idea as to what is prohibited by the law.

In any event, one thing is clear: animal welfare standards are more or less about economics, not morality. “Humane” treatment is a myth. The most “humane” standards of treatment involve what can only be described – literally – as torture. No reasonable person could describe the prevailing standards of animal welfare as providing “humane” treatment.

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Animals as Property: Can’t We Just Regulate Better?

We could in theory go well beyond what is required for the economically efficient exploitation of animals and purchase a much higher level of protection for animal interests based on our moral concern about animals.

It is, however, unclear as to how we could do this at the level of regulation. It would require that we value animal interests more than we value property rights and that we regulate for the benefit of the property. In liberal democracies, property rights are considered as among the most important rights we have. And in other political systems, property rights are still regarded as extremely important even if they are viewed in a more collective way. In any event, it is not easy to see how, if animals remain as property, we can get a qualitatively different level of protection. There are some countries, such as Britain, Switzerland, and Austria, which claim to have higher standards of animal welfare. To the extent that these or other countries provide protections that go beyond what are provided elsewhere, the difference is not great. The level of suffering imposed on animals is great everywhere.

With respect to meat, dairy, and eggs, some producers have decided that there is market for supposedly higher-welfare products that exceed the applicable regulatory or legal requirements. Animal charities, working with these producers, now license the use of labels that assure those who care about animals that they can consume with “compassion” by purchasing these supposedly higher-welfare products. Even if these products involve less suffering (and it is not clear that they do), any decrease is slight. The cost of producing animal foods that involved little or no suffering would be prohibitive. Anyone who cared enough to pay the cost would likely not be consuming those products in the first place.

Moreover, seeking to regulate better and reduce suffering ignores that, if there is a plausible argument that a particular animal use is necessary, all suffering incidental to the use is unnecessary and our choosing to inflict any amount of suffering pursuant to a use is a rejection of the principle that we claim to embrace.

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The Problem of Equal Consideration

Anything that is going to count as a legitimate moral theory must recognize the formal principle of equal consideration – that we must treat similar interests in a similar way unless we have a morally sound reason to not do so.

And if animals are property, it is not clear how we can apply the principle of equal consideration because the interests of animals who are property will never be seen as similar to those of humans. Because animals are property, we use them in ways in which we use no humans. This in and of itself suggests that equal consideration is difficult, if not impossible. Moreover, the property status of animals makes it difficult for us to perceive animal interests as similar to human interests, and property status is always a reason to add more weight to the human side of the scale and justify differential treatment.

It is interesting that, although Bentham was a utilitarian (one who maintains that the right action is that which maximizes happiness, pleasure, and so forth), he opposed slavery as an institution. It is at least arguable that Bentham recognized that, if a human were a slave, that human’s interests would necessarily be accorded less weight than the weight accorded to the interests of the slave owner. Slavery is an institution that cannot exist except by a systemic denial of the principle of equal consideration. A similar argument can be made about the institution of animal property: we will never be able to accord equal consideration to the interests of nonhumans who have the status of property.

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The Real Revolution: From Things to Persons

The reason why the paradigm shift that occurred in the 19th century amounted to nothing was that Bentham took the position that, if animals were sentient, they had an interest in not suffering but that sentience alone was insufficient for having an interest in continuing to live. That is, Bentham maintained that phenomenal consciousness is not sufficient for self-awareness and without the latter, there can be no interest in continuing to live.

Bentham is not the only animal ethicist to take that position. Indeed, it is accurate to say that just about every animal ethicist takes that position. Consider that Peter Singer, author of Animal Liberation (1975 and 1990) and widely regarded as the “father of the animal rights movement” despite being a utilitarian who rejects moral rights, maintains that any sentient being has an interest in not suffering but only those beings who are rational and self-aware, and who are connected to their future selves, are persons with a morally significant interest in continuing to live. Tom Regan, author of The Case for Animal Rights (1983) and a rights theorist, links his concept of “subject of a life” with a psychophysical sense of identity over time and, although he leaves open whether sentience alone can be sufficient to have a morally significant interest in continuing to live, he is “radically unclear” as to how sentience could be sufficient. So, for all practical purposes, both Regan and Singer reject the idea that sentience alone is sufficient for a being to have an interest in continuing to live. Beings who are sentient but who are not self-aware with a sense of identity over time have interests in not suffering, but we do not harm them per se by killing them.

I would like to suggest that this was where the rot of modern animal ethics set in. To have phenomenal conscious is to be connected to one’s future self in the next second of consciousness. Indeed, the whole point of sentience is to get a being who is sentient to the next second of consciousness. To have phenomenal consciousness is to have an interest in continuing to the next second of consciousness. It is to be self-aware in every second. Once we say that having an interest in continuing to live requires a further connection to the future, we end up in an arbitrary mess because there is no principled way to distinguish what degree of connection to a future self is sufficient for personhood. Moreover, the entire approach to animal ethics that links the interests of animals in continuing to live with their having minds similar to ours involves a game that animals cannot win. We will never be able to agree that their minds are similar to ours beyond observing that, like us, they are conscious. We can say about all sentient beings – human or nonhuman – that there is something it is like to be that being. That is the only similarity that saves the inquiry from being hopelessly arbitrary.

Let’s focus on an example that will demonstrate exactly why we link human personhood with consciousness alone. Assume we have two adult humans: Mary and Fred. Mary is a brilliant mathematician. Fred has late-stage dementia and, as much as any human can, lives in an eternal present. But Fred is otherwise a very happy fellow who enjoys every second of his life although he does not anticipate his life beyond the next second. We clearly are not under any obligation to treat Mary and Fred equally in all respects; indeed, it would be morally wrong to do so. If the local university needs a math teacher, it would be a wrong to Mary (and to Fred and to the students) to appoint Fred.

But let us assume that the matter is different. We are not looking for a math teacher but for someone to be used and killed in a biomedical experiment or as an organ donor. I submit that we do not use Fred because he is a person. There is something it is like to be Fred. We regard that something as having moral value. We have an obligation that we owe to Fred to not use him as a resource for others. He may not have moral obligations to anyone, but we have moral obligations to him. We do not require that Fred have a psychophysical sense of self that goes beyond the next second to some further point that would necessarily have to be arbitrarily chosen. Fred is connected to his future self in that, because he is sentient, he has an interest in getting to the next second of his consciousness. Fred is self-aware in that he is aware of himself from second to second. Fred is not the same sort of person that Mary is; there is, indeed, a qualitative difference between the two. But they are both persons in that both have morally significant interests in not being used exclusively as resources. We may also protect Fred’s interest in his life because we are concerned about his family or about public perception. But the primary reason that we protect him is that he is a person. He is not a thing. And his personhood means that we do not just protect his interest in not suffering; we protect his interest in his life.

Once we require that Fred have additional cognitive characteristics in order to be said to be a person, our judgments will necessarily be arbitrary. Is there a morally relevant difference between Fred, who has no memory and no ability to plan for the future beyond the next second of his consciousness, and Sara, who has late-stage dementia but who is able to remember one minute in the past and plan for one minute into the future? Is Sara a person and Fred not a person? If the answer is that Fred is not a person but Sara is, then personhood apparently comes into being somewhere in the fifty-nine seconds between Fred’s one second and Sara’s one minute. And when is that? After two seconds? Ten seconds? Forty-three seconds? If the answer is that neither are persons and that the connection with a future self requires a greater connection than one minute, then when, exactly, is the connection with a future self sufficient for personhood? Three hours? Twelve hours? One day? Three days? Any point we choose will be arbitrary. 

Consider this example: Every year, I buy pumpkins that have not been sold for carving at Halloween. I put them out on the lawn and the squirrels spend hours getting into the pumpkins and eating some, and storing some, of the seeds. I have no doubt that they enjoy their seeds. I also enjoy pumpkin seeds. I particularly like the seeds produced in the Styria region in Austria. I go to great lengths to get these seeds and I almost always sprout them. My enjoyment of pumpkin seeds is accompanied by a conceptual framework that I assume squirrels do not and cannot share. But it would be silly to say that squirrels do not enjoy their pumpkin seeds because they lack the conceptual framework that accompanies my enjoyment of pumpkin seeds.

Why do we think that animals lack an interest in continuing to live because they do not share the conceptual framework that we have and that allows us to think about our lives in a particular way? It goes back to Bentham. Bentham assumed that animals did not have an interest in continuing to live because, unlike us, they cannot contemplate their getting old, getting ill, and dying. Bentham’s observation that we think of life through our focus on demise and death is an interesting comment about how we think of life through the prism of death but it does not mean that that conceptual framework is necessary to have an interest in life any more than the squirrels need the conceptual framework that accompanies my enjoyment of pumpkin seeds in order to enjoy their pumpkin seeds.

The only explanation for our adherence to such beliefs is anthropocentrism. Philosophers who set the tone for animal ethics seem to think that it is clear that animals do not have an interest in continuing to live because they don’t have the same interests as philosophy professors do. They can’t enjoy contemplating philosophical texts and they cannot plan for their next sabbatical. For example, Jeff McMahan tells us that, with respect to nonhuman animals, “their highest peaks of well-being are significantly lower than those accessible to most human beings” in that animals lack “dimensions of well-being that are arguably more important” including “achievement, creativity, deep personal relations, knowledge, aesthetic appreciation, and so on.” Putting aside that it is unclear how it is that McMahan has such insight into the nature of animal minds, this sort of thinking necessarily leads to the conclusion that the lives of less-educated people matter less and that the lives of those who are conscious and who enjoy every second of life but who don’t think beyond the next second don’t matter much at all.

What many ethicists have to say about animals is reminiscent of something Thomas Jefferson once said: “Their griefs are transient. Those numberless afflictions, which render it doubtful whether Heaven has given life to us in mercy or in wrath, are less felt, and sooner forgotten with them. In general, their existence appears to participate more of sensation than reflection.” Jefferson was talking about human slaves.

We can look at Jefferson’s statement and dismiss it as reflecting that Jefferson, a slave owner, had a vested interest in an institution in which sentient beings were commodified. But when it comes to animals, just about all of us are in a position analogous to that of slave owners. Most of us directly participate in the exploitation of animals. That may explain why otherwise intelligent people say things that are as transparently self-interested – and wrong – about animals when attempting to justify exploiting them.

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Animal Right – Yes, Just One

If animals are persons and have a morally significant interest in continuing to live and in not suffering, where does that leave us? I am not sure of what the outer limits of our resulting obligations are, but I am sure that at the very least, it means that we have to recognize that animals have one right: the right not to be property. If they are persons, then we should stop treating them as property. Although we may disagree about what rights human have, we all recognize that all humans, irrespective of their particular characteristics, must have the right not to be the property of others. We recognize that to be property means that you are excluded completely from meaningful membership in the moral and legal community. The same is true when it comes to nonhumans. If animals matter morally, we have to stop using them as property.

As for our obligations as individuals, it would seem that we should stop participating directly in using animals exclusively as human resources. This would mean that we should stop eating animals and animal products, wearing animals, and patronizing forms of entertainment, such as circuses or zoos, that involve animal exploitation. Veganism is a moral imperative. We cannot avoid indirect participation in that, because we engage in a breathtaking amount of animal slaughter, animal by-products are all around us in road surfaces, plastics, etc. The idea here is that when we have a choice – which we do, unless we are starving on a desert island or adrift in a lifeboat – we ought to choose not to participate in the use of animals as human commodities. And when we do not have a choice, that does not mean that using an animal is morally justifiable; at most, it is morally excusable: our use is wrong but the compulsion of the situation mitigates our culpability.

To say that animals have a right not to be property does not mean that humans and nonhumans are the same for purposes of being rightholders. It would make no sense to talk about giving animals the right to drive or to vote (although our political situation could only improve if we were to do so). What it does mean is that all sentient beings – human and nonhuman – are equal for one purpose: we should not treat any of them exclusively as resources and make them suffer or kill them pursuant to that use. This does not mean that we have a moral obligation to protect nonhumans from all harm any more than we have an obligation to protect humans from all harm. It does mean, however, that we have an obligation to protect them from all harm that is incidental to our using them as commodities. And it means that we should stop producing, or facilitating the producing of, domesticated animals. We may owe animals more, but we owe them at least not using them exclusively as means to ends: veganism is the moral baseline.

Is this a radical idea? Yes, in one sense it is. It is certainly an idea that requires that we really shift the paradigm and reject the idea that we have are entitled to use animals exclusively as resources. But in another sense, it’s not radical at all. We already embrace the idea that it is wrong to inflict unnecessary suffering on animals. If we interpreted that principle unaffected by our unquestioning acceptance of the status of animals as property, we would be committed to not using animals for any situation in which there is not a genuine moral conflict. That would be the virtual end of animal use even if we did not accept that animals are persons with a right not to be used as property as there is no real moral conflict involved in the overwhelming portion of our animal use.

Gary L. Francione is Board of Governors Distinguished Professor of Law and Katzenbach Scholar of Law and Philosophy at Rutgers, The State University of New Jersey (U.S.A); Tutor in philosophy at the University of Oxford, Continuing Education;  Honorary Professor of Philosophy at the University of East Anglia; and Visiting Professor of Philosophy at the University of Lincoln (U.K.). The themes discussed in this essay are developed in greater detail in his Why Veganism Matters: The Moral Value of Animals (Columbia University Press, 2021). The author gratefully acknowledges comments he received from Anna E. Charlton.

Website #1: https://www.abolitionistapproach.com 

Website #2: https://www.howdoigovegan.com

Twitter: https://twitter.com/garylfrancione

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From The Philosopher, vol. 109, no. 1 ('Nothing').

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