I was teaching a fourth-year seminar class on “Animals and the Law” last term at Brock University and we explored rights for great apes for many weeks. We looked specifically in one week at resistance to great ape rights. Some of the opposition is blindly speciesist. But some of it is by thoughtful anti-speciesists, who think they have a better perspective than other anti-speciesists who are prepared to support rights-for-great-apes campaigns. Animal rights pragmatism versus fundamentalism is a debate that bears implications for great apes activism, such as the Great Ape Project (GAP), which tries to secure a commitment to give great apes (chimpanzees, gorillas, and orangutans) the rights to life, liberty, and freedom from torture. I believe that apes deserve not merely to be free from torture—an excessively conservative goal—but to experience well-being or welfare, for example on animal sanctuaries. However, that aside, I generally support the GAP. Steven Wise advocates rights only for chimpanzees and bonobos in his book, Rattling the Cage. I think we can successfully win rights for more great apes than that. I address the Great Ape Project in passing in “Animal Rights Law,” but not in depth. However, this Project is of immense importance, and so I feel the need to contemplate it today.
Now, animal rights fundamentalists sometimes (not always) take issue with great apes activism. Joan Dunayer, an animal rights fundamentalist, supports great apes activism—with a qualification that it can only legitimately be based on arguments that the apes are sentient; we must never cite their higher intelligence, according to Dunayer. Gary L. Francione used to support the GAP (he was a contributor to the volume, The Great Ape Project, St. Martin’s Press, 1993), but has since condemned it. By contrast, philosophers who advocate animal liberation such as Paola Cavalieri, Peter Singer, Tom Regan, Bernard Rollin, Steve Sapontzis, Richard D. Ryder, Marc Bekoff, Stephen R. L. Clark, James Rachels, Collin McGinn, Dale Jamieson, Harlan B. Miller, and Barbara Noske advocated the GAP in their articles in the GAP volume (along with others such as Jane Goodall, Roger and Deborah Fouts, and Richard Dawkins) presumably without any backpedalling. Yet none of these authors, to my knowledge, has engaged with fundamentalist negativism about the GAP. So first, I will outline an animal rights pragmatist defense of great apes activism. Then I will deal with Francione’s objections, and finally show how Dunayer’s position on great apes activism needlessly undermines the effectiveness of the general campaign.
Animal rights fundamentalism in its core form is very simple (a more elaborate understanding of this topic is presented in my article, "Animal Rights Law"). It holds that anything contrary to animal rights is morally wrong, or inconsistent for an animal rights activist to support. Francione’s own view is more complicated than that. However, the version of animal rights pragmatism based in best caring ethics holds that animal rights is not our ultimate consideration. This suggestion might startle many animal rightists, but allow me to explain. Rights are mere things, and nothing matters to any mindless thing including stones, toasters, and rights. However, sentient beings are another matter. Many things matter to sentient entities. So it makes sense, if our actions are to have any positive significance, to act ultimately for sentient beings. And we cannot do better than to advocate what is best for sentient beings, as best caring ethics urges. It is best for sentient beings to have full rights, and that is what is unequivocally advocated both in the near-term and the long-term. Individuals and groups can and do embrace animal rights through social transformation. Yet with respect to law, it is different. We are not about to pass laws granting equal rights to sentient beings any time soon in legislatures. That is why, in “Animal Rights Law,” I argue that we should do, in the legislative near-term, whatever is best for sentient beings, even if that would be contrary to making "rights" our ultimate consideration. Let it be clear though: animal rights laws are advocated to be put in place as soon as possible.
Now in addressing potential legislators and judges, there are two ways of making legal progress for great apes:
- We can convince others to adopt our own beliefs. Thus, animal rightists seek to convince everyone that all sentient beings deserve rights.
- If we fail to convince others of our own beliefs, we can try to show others that even according to their own beliefs, they should make concessions to the animal rights movement.
Granting great ape rights would be one such concession along the lines of 2. Many people argue that anyone with self-awareness, rationality, linguistic capacity, social awareness and other cognitive abilities deserves rights. That is why they say, albeit questionably and I think wrongly, that humans have rights. We can therefore use these people’s beliefs as a lever to grant great apes rights. Such a use does not logically imply that we are saying such people are right. Using the first appeal too states rather that they are wrong. The use of the second appeal as well only implies that we recognize that others believe differently than ourselves, which is simply true. It is an appeal in favor of others' integrity and against their ongoing hypocrisy. Of course, we should also urge that great apes deserve rights simply as sentient beings, but to fail to make the secondary appeal is to fail to convince multitudes of people who are not persuaded, at least for now, solely by appeals to sentience. It is a failure to help others to realize the full logical development of their view which would be better not only for them but for others as well. Failing to convince others has a cost: lack of rights for great apes. Francione does not even make the distinction between these two types of appeal, let alone provide the slightest argument as to why simply appealing to others to be self-consistent is somehow unacceptable or wrong.
We do not have to claim that appeals to humanlike cognition are valuable in the sense of being correct or true, or that they promote the greatest possible good of sentient beings in principle. On the contrary, such arguments seem incorrect and to fail to support what is best for all in the abstract (which is crucially different from what is best in context—see again "Animal Rights Law"). However, they are manifestly useful appeals, because they do convince people who might not be moved by sentientism in general. And great apes rights are a viable form of animal rights in the near-term, since they have already been accomplished in some countries. Britain, New Zealand, and Sweden have banned the use of great apes in scientific research. The Baeleric Parliament of the Spanish Baerlic Islands has gone ever farther and supports the Great Ape Project itself.
In contrast to the success of GAP-like initiatives, equal rights for all sentient beings are not viable in the legislative short-term. If we make great ape rights part of a general campaign for sentient beings only, then we might list great apes among the many diverse animals whom we wish to see protected by animal rights laws. Even having a special paragraph on the great apes would be seen, by this logic, as making a “special” appeal on behalf of apes because they are like us. I predict that such a weak and unfocused initiative would fail to win great ape rights by far. Or at least such a campaign would be much less effective than a focused campaign that moves all the levers it can on behalf of great apes, including calling people to be consistent with what they already believe, even if they cannot be made to embrace different fundamental beliefs. So option 1. would not bring rights for sentient beings in general any day sooner—I will now argue that this retardation of progress for great apes would set back animal rights in general. At most, a fundamentalist such as Francione might focus on freeing individual chimps from hellish enclosures, or seeking habitat protection or appropriate veterinary care for their species. Such campaigns would be weakened without the motive force of peoples' already cemented convictions.
Great ape rights make a noticeable dent in speciesism. Entrenching rights for great apes, even if some believe that is because they are humanlike, would further breach the species barrier in the granting of animal rights. As noted, we have already done this, or at least some nations have. Such a move only makes people take animal rights all the more seriously. And there is no reason to fear that we will stop short at great ape rights with no further progress if animal rights arguments and activists are worth their salt. Questions of animal rights generally have not died off in countries where great ape rights are granted. Such nations are regarded as advanced in animal rights, and that can only advance the animal rights cause. As I have argued in "Animal Rights Law," creating a kindness culture is conducive towards animal rights. However, it is also conducive to animal rights laws simply to build up animal rights in the lawbooks rather than their absence. Such an achievement suggests that animal rights are appropriate and feasible, and only invites further questioning as to what other extensions of animal rights may be right and possible.
The Great Ape Project itself is as positive as it can be expected to be towards rights for all sentient beings. Here I quote from "A Declaration on Great Apes", which prefaces the Great Ape Project collection of essays:
Our request [for great ape rights - DS] comes at a special moment in history. Never before has our dominion over other animals been so pervasive and systematic. Yet this is also a moment when, within that very Western civilisation that has so inexorably extended this dominion, a rational ethic has emerged challenging the moral significance of membership of our own species. This challenge seeks equal consideration for the interests of all animals, human and nonhuman. It has given rise to a political movement, still fluid but growing. The slow but steady widening of the scope of the golden rule - 'treat others as you would have them treat you' - has now resumed its course. The notion of 'us' as opposed to 'the other', which, like a more and more abstract silhouette, assumed in the course of centuries the contours of the boundaries of the tribe, of the nations, of the race, of the human species, and which for a time the species barrier had congealed and stiffened, has again become something alive, ready for further change.
The Great Ape Project aims at taking just one step in this process of extending the community of equals. We shall provide ethical argument, based on scientific evidence about the capacities of chimpanzees, gorillas and orang-utans, for taking this step. Whether this step should also be the first of many others is not for The Great Ape Project to say. No doubt some of us, speaking individually, would want to extend the community of equals to many other animals as well; others may consider that extending the community to include all great apes is as far as we should go at present. We leave the consideration of that question for another occasion.
Let us comment on this statement of the Great Ape Project on rights for animals in general:
- it acknowledges utter dominion over all animals, not just great apes
- it calls considering "equal consideration for the interests of all animals" a "rational ethic", which is surely praise
- it challenges species-membership as a legitimate grounds for discrimination
- it envisions the Great Ape Project as "just one step in this process of extending the community of equals." Clearly that leaves other steps as possible, and are praised by the project as according with "a rational ethic", as noted, and as extending the golden rule, perhaps leading to many steps for extending the community of equals, perhaps to other animals as well
- it cites the golden rule, treat others as you would have them treat you, which justifies rights for more animals than great apes
- it acknowledges that many people will want to extend animal equality more generally
- it suggests some "other occasion" for considering animal rights more generally, which is perfectly appropriate, as this must come outside an alliance for great ape rights, given that not all allies - indeed most - are not animal rightists
Another factor that is key here is that the GAP, in the Declaration just cited, declares that great apes "have mental capacities and an emotional life sufficient to justify their inclusion within the community of equals." It is vital to distinguish logically between necessary and sufficient. This sufficiency, anyway, is the basis for great ape rights. It is actually not speciesist and is morally unexceptionable. It is true that great apes have sufficient minds to be awarded rights. It is a good place to start in full moral argumentation - when asking who deserve rights - to begin first with those whom we agree have sufficient characteristics for rights, and then to investigate from there what is needed to have rights. The statement leaves it open that other kinds of nonhumans also have sufficient minds - say, in the form of sentience - to be awarded rights. The only speciesist ethic would be to assert that it is necessary for beings to have humanlike cognitive characteristics to be awarded rights. The GAP never endorses this speciesist, exclusive doctrine. So it asserts part of animal rights that is unexceptionable to animal rightists. True, it emphasizes human-like qualities. But again, why not pull a lever that will deliver uncounted thousands of animals from violence?
Animal rights pragmatists, in the legislative short-term, face a choice between goods and evils:
- advocate sentient being rights in general, and great ape rights only as a part of that general advocacy, but then lose the momentum of a focused, maximally effective campaign on behalf of great apes, or
- support not only sentient being rights, but campaigns specifically for great apes, using not only sentientist arguments, but also citing humanlike cognitive capacities; such an appeal to humanlike characteristics we do not regard as ideally correct or just, but many others do, and such a tactic will convince many to back great ape rights.
Pragmatists should recognize that 2. is the lesser of evils, and indeed the greater of benefits, for sentient beings. Both 1. and 2. permit and encourage critiques of speciesist favoritism for more humanlike beings, so that is not a distinctive advantage for either approach. However, consider the four advantages of the pragmatist approach which the fundamentalist does not share:
- is more conducive to animal rights more generally, as I argued above;
- wins rights for great apes, preventing their exploitation and perhaps extinction;
- promotes self-consistency, which helps to make logical progress in the development of views; it also encourages critical thinking skills leading to animal rights (which is yet another factor that might conduce towards animal rights more generally);
- it makes people less hypocritical, or promotes the virtue of integrity in the world, which is beneficial to the character of the one with integrity and to the community at large.
So it seems to me really a matter of fact which is the better approach, or which best approximates the best. One advantage is moot between approaches, and four key advantages, on any reasonable view, are enjoyed only by the pragmatist option as against the minority position of the futilitarians.
Francione needs to establish that it is best for sentient beings if animal rightists refuse to support the GAP. (Dunayer needs to show it is best to restrict ourselves solely to arguments regarding sentience—which I will soon discuss.) We cannot intelligibly argue that it is “better” for apes to languish without liberation, let alone “best” for them. Francione’s approach would be too little, too late, and the the upshot is that great apes might very well go extinct without adequate protection in the near future, a near future road marked by horrifically unmitigated exploitation and neglect of these magnificent creatures.
Let us now consider and rebut Francione’s specific objections to great apes activism in his blog entry for December 20, 2006:
Objection 1: He rejects “the similar minds position,” or trying to base rights for great apes on the premise that these beings are like us.
Reply: I reject such an argument too in terms of its being illogical, or untrue, and not ideally best for all animals. However, as said, there are two ways to convince people, and one of them is to persuade them with reference to what they already believe. That is not immoral if it is crucial to securing the best we can for sentient beings. Most humans now believe that only humanlike beings deserve rights. That assumption provides plenty of leverage for winning rights for great apes. Francione’s “generalist approach” which would seem to mean simply listing great apes among the sentient beings who need rights would be weak, unfocused and certainly would not have won the legislative breakthroughs such as New Zealand’s law to end experiments on great apes. Again, we do not have to think the “similar minds” position is right. Other people do that. We need only recognize that humanist assumptions are useful towards getting the most that we can for sentient beings in the short-term, in terms of increments of progress. That is what matters to animals in the end: securing their good. They do not much actually care what humans believe, I would have to guess. I am not however arguing that peoples' beliefs are irrelevant to the cause of animal rights. We would be at least one increment short of what is possible without great apes activism, since neither they nor any other sentient being would have legal rights in the wake of a successful anti-great-apes-activism-campaign, for a very long time to come. Francione writes that we should not link “moral status of nonhumans to the possession of humanlike cognitive characteristics.” True, but great apes activists need not do this, but only recognize and make use of the fact that other people do so even in the face of protests from animal rightists such as myself. In any case, the GAP only says the great apes have that which is sufficient for rights. It never says you need human-like characteristics for rights. So the GAP is not immoral in what it says.
Is there a fear that such campaigns after all “imply” that anthropocentrism is correct? Any such loose implications can be swept aside if the campaign explicitly rejects anthropocentrism, while still calling on humanists to be self-consistent in the interests of the apes themselves.
Objection 2: Great apes activism does not challenge speciesist hierarchy but reinforces it in that
(a) it suggests that only beings such as great apes have certain characteristics such as intelligence, emotions, and complex social relationships, and other sentient beings do not; and
(b) it suggests that such cognitive characteristics have moral value.
Reply: I have already refuted (b) from an animal rights pragmatist perspective. My campaign does not affirm higher intelligence as a criterion of moral standing, for example. As for (a), this is in no way claimed by even one single author in The Great Ape Project. It is merely argued that great apes have higher cognitive abilities than many other animals, which is true. It does not deny that many other animals have very high levels of cognition. This is merely an unfair and unsubstantiated imputation of Francione’s, much like his false claim that the Oxford Centre for Animal Ethics promotes a view of animals as things (see my blog entry for April 25/07).
Objection 3: Humans who are mentally challenged do not deserve less rights than normal humans.
Reply: True, but the animal rights pragmatist is not saying otherwise, so this objection is irrelevant. Again, practical use is being made of a humanistic assumption, without any endorsement of its truth or ethical rectitude—just the contrary, ableism against the mentally challenged and speciesism are uniformly denounced by animal rights pragmatists.
Objection 4: Francione writes that great apes activism is “like having a human rights campaign that focuses on giving rights to the ‘smarter’ humans first….We would certainly reject that elitism where humans are concerned.”
Reply: It is true we would not make such appeals in the case of humans. But the case is disanalogous. The world cultural climate is more or less receptive to universal human rights appeals, even as it is increasingly receptive to great apes rights campaigns. It is not receptive to sentient being rights appeals at the legislative level, so the analogy utterly breaks down. It is not “elitist” to advocate rights for all sentient beings in the long-term, and to secure whatever increments we can for sentient beings in the short-term. Rather it is neglectful to fail to fight for great ape rights and to just watch while these animals go extinct, while smugly handing out fliers about rights for all sentient beings that give no special mention to the great apes—except perhaps to poo-poo promising campaigns focused on their liberation.
An additional concern that I can foresee is that the secondary appeal can be viewed as cynically manipulative, rather than calling people to believe what is right. However, an appeal to embrace what is right is already being made, and indeed to extend what others already view as right. Furthermore, it is not unduly "manipulative" to find common ground with others to make progressive legislation, in the way that consistent humanists and animal rightists will tend to share common ground as GAP proponents. These parties should work that way together, not just with one side "manipulating" the other. Any further concessions to animal rights can be left to the long-term workings of democracy. What could be wrong with that picture?
Francione and I agree that we already know great apes are similar and do not need to fund more research on the apes. Many know of the similarities, but many do not, as my course amply demonstrates to me. My students learned huge amounts of data about the amazing abilities of great apes other than humans. I do not advocate experimenting on great apes against their will, nor indeed does the GAP. I am as ever an anti-vivisectionist. That research on apes has been done and I agree that their amazing cognitive abilities have been well documented. No more invasive research should be done, and that is not an implication of supporting the GAP. But many need to be educated about these facts if it will help result in rights for these great apes. Peoples' awe over ape minds from these experiments should ironically help to inspire antivivisection with respect to apes. Research could be funded that just collects together amazing facts about primates that have already been established to "wow" many into supporting the GAP.
Francione speaks in Rain without Thunder of banning areas of animal exploitation, including I would imagine marine animal acts. Yet part of what will win further protection for dolphins, beluga whales, and killer whales in particular is their advanced cognitive capacities. This has already won some progress. Would he oppose focused campaigns of this sort too? Perhaps he is “obliged” to in light of what he believes about the GAP. Moreover, as my friend and long-time animal rights activist JoAnne Schwab points out, a lot of sympathy with whales' advanced minds generated the admittedly imperfect moratorium on whaling that exists. If researchers just mentioned that whales suffer that would not have inspired the same victory, any more than citing the suffering of fish has stopped fishing. People thought, "Oh my gosh! Aside from their different bodies, the whales are so much like us!" People often do not think the same thing of fish. Thinking of whales as very similar to us naturally more easily inspires similar treatment of both humans and "humanlike" creatures. (Of course, again, I am not saying that rights should be awarded based on intelligence.)
Now, unlike Francione, Joan Dunayer supports great ape rights activism—qualified support though. In brief, she argues that it would be “easy” to win great ape rights: “If someone thinks that a great-ape campaign is more winnable than others, they should go ahead. However, they shouldn’t argue based on the shared characteristics (other than sentience) of humans and other great apes.” (Speciesism, pp. 117-118) Why are such campaigns, which are by no means "easy," more winnable? Because they implicitly play upon humanist assumptions about rights. Why not play upon that more explicitly then for even greater success?” Such rights are indeed winnable as Dunayer observes and foresees. However, we would not be as likely to win them, or do so as quickly, if we do not make use of the humanist assumptions that people already have. If we advocate great apes rights purely on the basis of their ability to suffer, that will no more move people than appeals that other animals suffer—which is an appeal with only limited success thus far. Yet appeals to apes’ ability to reason, use language, etc. dramatically win public sympathy and thus increase “winnability” exponentially.
A pragmatist will denounce speciesism, and favoring animals on the basis of intelligence, but they will still criticize humanists that they should at least be consistent with what they already believe. Anyone can legitimately be criticized on that score, quite apart from whatever new beliefs they should acquire. That is standard practice in academics where it is accepted that a diversity of opinion prevails, and implications of others' views are routinely spelled out, whether they like it or not (I do that a lot in this blog!). Indeed, we are much more likely to persuade others of implications of a belief they already hold than to adopt a brand new belief of rights for all sentient beings. Francione entitles his blog entry, “The Great Ape Project: Not so Great.” I say rather that the GAP is a momentous idea whose time has come, and it is a legislative proposal that should be implemented with full force, in the greatest possible way, using whatever legal arguments are most effective. Rejecting the GAP, or strait-jacketing it as only allowed to appeal to sentience, is a way to lose rather than to win achievable animal rights. An exclusively sentientist great apes campaign will convince fewer people, and as Steven Wise demonstrates in Rattling the Cage, the restriction will not enable us to connect as well with existing legal precedents. Wise himself mentions in a later book, Drawing the Line, p. 34: "If I were Chief Justice of the Universe, I might make the simpler capacity to suffer, rather than practical autonomy [which requires advanced cognitive capacities], sufficient for personhood and dignity-rights." However he points out that sentientism is irrelevant to common law judges. Still, Wise models how one can advocate both sentientism and progress for great apes that uses appeal to higher cognition as a campaign mechanism. Let us be winners rather than losers of winnable battles on behalf of animal rights—for the animals’ sakes. And let us not be ashamed to identify great apes as having sufficiency for rights, leaving it open and praised as "rational" that we extend rights to animals more generally.
1. Animal “welfarist” laws are also more “winnable” than truly nonspeciesist laws, but in fairness, she is not committed to supporting “welfarist” laws just because they are winnable. She thinks, anyway, that she can self-consistently reject “welfarist” laws just because they are speciesist. “Animal Rights Law,” my essay, I think puts to rest the idea that anti-speciesists morally must reject “welfarist” laws in the short-term, but let us continue to focus on great apes rights in this blog paper.
FURTHER READING ON ANIMAL RIGHTS INCREMENTALISM
A Selection of Related Articles
Sztybel, David. "Animal Rights Law: Fundamentalism versus Pragmatism". Journal for Critical Animal Studies 5 (1) (2007): 1-37.
Short version of "Animal Rights Law".
Sztybel, David. "Incrementalist Animal Law: Welcome to the Real World".
Sztybel, David. "Sztybelian Pragmatism versus Francionist Pseudo-Pragmatism".
A Selection of Related Blog Entries