Saturday, February 11, 2012

Francione vs. Sztybel on Animals' Property Status: In Search of a Coherent and Positive Vision


David Langlois, in 2007, very helpfully educated me that Gary Francione does not mean by "the property status of animals" what most people mean. Most individuals invoke the dictionary definition, and think that property means owning animals. That is why Dunayer did not get Gary's concept of animals as property right in her book, Speciesism. She critiqued his views as if all he meant were owning animals by their "property status." Now Francione associated, in effect, speciesism with animals' property status. Their being treated with unnecessary suffering. Their being regarded as slaves or resources or instruments or objects, and so forth. Essentially, I will argue that Francione confuses "property status" for animals with their speciesist treatment. Furthermore, I will attest that such negative associations are anti-progressive for both animals and their rights.

Francione's Lack of a General Theory of Property Status

Francione achieves a kind of pseudo-profundity, as though he is "exploring" ownership, when in fact he is merely outlining other speciesist insults that most often go along with property status these days...but ONLY when a speciesist is the owner! So it is not even a general exploration of property status for animals. Yet that is how he discusses his concepts. He never says "except when we are talking about animal rights people" or anything of the sort. Dictionary definitions need to be general, so Francione is not offering any plausible substitute for the lexicographical rendering of property status, even for animals. So it necessarily follows that Francione is not "exploring" the owning of animals in general at all but merely speciesist ownership. He might as well just say "speciesism" then. But that would leave us back where we started, with dictionary definitions and ordinary usage. Maybe that is not such a bad thing...

Let us try to put the matter in mathematical terms, in order to render my logical point more clearly. So let us assume in our analysis, for the sake of simplicity, the following equations:

1. speciesism = speciesist consideration and treatment [note that I am not defining speciesism here; rather, I am indicating that for which I will use the term "speciesism" as a short-form]

2. speciesist consideration and treatment = legal ownership of animals, treating them as mere resources, slaves, tools, instruments, objects or with a general disregard for their interests (i.e., cruelly), etc.

Note that when I refer to property status, that is a short form of legal property status.

Francione is saying in effect:

3. property status of animals = ownership + speciesism

(I am just assuming here that he does not disown ownership as a part of animals' property status! Actually, the next paragraph shows that this is no idle concern...!)

In fact, the Francionists say that this "association" or "deep" analysis of Francione's is so powerful that even if everyone ceased to own animals because such a legal relationship is abolished, animals will still be treated as property if ever they are abused. Because speciesism is supposedly so rigidly associated with property status. Well, is it? Either semantically or by using advanced ethical or other theory? We can test these notions.

In the case of an animal rights person, we can entertain the following equation:

4. property status of animals = ownership

There is no speciesism in the ownership practices of the animal rights person. So it would be false or misleading to include equation 3. does. In other words, to get from equation 3. to equation 4., we need to do the following operations...We need to start with 3.:

3. property status of animals = ownership + speciesism

But since 4. does not include speciesism we must do the following mathematical operation with 3.

property status of animals = ownership + speciesism - speciesism

Thus speciesism cancels out in the equation, and only in this way do we get 4.:

4. property status of animals = ownership

So suddenly speciesism is not rigidly associated with the property status of animals after all. And so it is unsupportable to argue that speciesism is so rigidly associated with animal ownership that even after the latter is abolished, all speciesism is somehow a case of "property status." We have seen that there is no rigid association at all, even in present, everyday terms. Objectively speaking, the speciesism can come and go completely, and in an almost entirely animal rights society, speciesism would no longer be associated with most cases of animals as property. In other words, we have determined that Francione's implicit equation:

property status of animals = ownership + speciesism

is faulty and should be discarded. It results in logical incoherence if we try to take it seriously. It is much better to say that the property status of animals refers to their being owned, and that this may or may not be compounded with speciesist views and practices.

A Way Out for Francionism? Minimal versus Maximal Property Status?

The only way Francione could try to "save" his analysis, so far as I can tell, is by holding that speciesism is not rigidly associated with property status of animals. But then it would no longer be associated with the understanding of such property status. Do we say that the animal rights person owns an animal, but that speciesism is still there? Not really, at least not on the part of the vegan. Can we say there is "minimal" property status which accords with the dictionary, but "maximal" property status includes speciesism too? I do not accept that animals have "more" property status when they are owned by speciesists. There is more speciesism, sure, but it begs the question to assume that this means more property status. Indeed, the implication here would seem to be that an animal rights person could not participate in a full case of property status. That seems to mean that they cannot have 100% property relations to animals. But that is not true. Vegans can own animals 100%, without any doubt or equivocation. This implies that we have 100% property status before adding on the speciesism.

Also, if we think that a full-blown case of property status = ownership + speciesism, then ownership should be dispensable and speciesism alone (with all of its aspects) should immediately mean property status. Yet I do not accept any such equation in meaning. Speciesism does not mean property unless someone says so, or stipulates to that effect, which Francione does. I do not accept mere, unjustified stipulations. But this is a kind of stalemate: the Francionists would so stipulate, and I would beg to differ. We can do better than this.

There are at least a few ways in which characteristics can be associated with a term: by meaning or contingently. If something is associated with a concept by meaning then it is a matter of how the term is or should be defined. So should we recommend to the dictionary-makers that under "property" they should include "ownership," but also, if it pertains to nonhuman animals, speciesist treatment, and if it pertains to human slaves, racist treatment? I do not think that lexicographers would wish to confuse terms in this manner. By contrast, contingent association means that in the real world, very often certain things go together. Animals as property often does go together with speciesism, although not always. Contingent associations should only be a part of the understanding or meaning of a term if they are normally the case. For example, a dog can be defined as a four-legged creature because they normally have four legs, barring, for example, amputations or birth defects. However, in a society that is advanced enough to abolish animals as owned, it would probably no longer be completely normal for owned animals to be treated in a speciesist manner. I think terms should apply equally at every phase of history. But this one does not. For a far-future person to say we can own animals, but we no longer accord full property status to animals, I would not be able to agree. Yet there is an impasse here still. Francione would (presumably, to save his position) say that property status should include more to be full-blown.

Beyond: A More Positive Vision for Property Status

The truth is, philosophers can define terms however they want. I cannot rightly say that Francione "cannot" define the property status of animals to include speciesism. He can do so and has done. The real question is whether this is wise. If things are associated with a term based on what tends to go with the term in the real world, that changes over time. Nowadays, the property status of animals will tend to be associated with speciesist treatment or consideration (treating animals cruelly as mere means, objects, etc.). But in the future, just before their property status might be abolished, society might be so advanced that anti-speciesist treatment is strongly--though of course not perfectly--associated with property status. You see, if someone has an entity as property, that person has power over the entity in question. They can treat the being well or badly. So it is possible for there to be a society in which it is a general animal rights society, but they as a society have not yet moved to abolish ownership. (Like how equal pay for work of equal value was seen to be right long before it was implemented in some contexts.) Only this society's standards of ownership, at least among the animal rights contingent (which would be in the majority in this case), requires that people not treat animals in a speciesist way, i.e., as resources, tools, objects, cruelly and so on. Even though the animals would be technically or legally owned. In that case, property status might usually be associated with the opposite of what Francione says (the latter is always negative).

Indeed, so long as property status lingers on, we should try to be much more positive than Francione is about property status. We should recognize that the powers inherent in the property status of animals can swing both ways. We should make it an ethical rule that the property status of animals should mean that the owner never treat the animal cruelly, as an object, nor as a mere resource, tool, slave, and so forth. We should therefore ethically insist on positive associations with animals-as-property rather than the negative ones that Francione "champions." Francione's purely negative associations with the property status of animals would obstruct this purpose, that is, a much-needed revision of our understanding of property status.

I, by contrast, agree with Francione that the property status of animals is crucial to understanding their legal status both theoretically and practically. But I draw conclusions that are far more helpful to animals. Animals are generally classified as the property of humans for the purposes of law. This entails that it would be virtually impossible to affect the legal status of animals without revising their property status. Yet Sweden proves this is entirely possible. It is merely a question of what rules or customs are adopted, and democratic parliaments can vote in favour of anything. A "responsible use" by property owners idea could radically reduce violence towards animals. This shows it is not only possible to use property status to the animals' advantage, but absolutely crucial to do so, given the centrality of property status to animals' current legal fate.

The Francionist might object that in a perfect world, there would be no property status applied to sentient beings at all. I agree whole-heartedly, but this is not a perfect world, and will not be for some time, let us say. Animals are property, and so long as that continues, animals in the home as property should never be treated in ways that Francione says are associated with property status. There should be an attempt to associate such good and respectful treatment with owning an animal, to make that enduring institution of ownership as good as possible while it yet lingers on. Thus, Francione's retrogressive concept of what property status "is" does not allow for such progressive politics concerning animal ownership. Therefore it should be rejected on ethical grounds, in terms of how we might choose to define animals' property status by stipulation. Full-blown cases of property status can involve not only ownership, and not only the idle lack of the traits Francione associates with animals-as-property, but the deliberate cultivation of the opposite traits as part of aiming for animal rights as much as possible.

It is not merely passive to go along with speciesist tradition as to what is normally associated with property status, but is actively anti-progressive. "Responsible ownership" has long meant the humane treatment of animals, although animal rights people need to aim for more than that. Indeed, we need to insist that traditional, even "kindly" meant treatment is not necessarily humane at all. For example "humane" slaughter seems a contradiction in terms, although some forms of slaughter are kinder to the animals than others. It is kinder to use a captive-bolt pistol than a novice swinging a pole axe. But while the traditional criteria of responsible ownership go against Francione's dictum that property status means disregarding animals' interests, because enlightened ownership means favouring animal interests to some extent, we need to go much further in refuting and contradicting Francione. We need to demand of citizens that they treat all legally owned animals in an anti-speciesist way, period. And that means radically redefining property status in a way that cannot be overshadowed by Francione's negative, overly rigid definition.

So I am supposed to be grateful that Langlois "clarified" Francione's take on property status? Well, I still am thankful to Langlois. But I am not quite as grateful for Francione's "analysis" of "property status," even though so many of his followers treat it as though it is some kind of guiding light, because as a massive confusion it is a disservice to the academic and activist communities. I hope that most everyone will join me in rejecting Francione's "revised" concept of property status in favour of the good old dictionary definitions, plus a more positive philosophical conception of animal-property-status. That is, without Francione's incoherent confusion about what property status supposedly "is" or must be, and without his sheer negativism.

It follows that the model of "full-blown property status" cannot save Francione's definition of animals-as-property from the incoherence shown in my list of equations. The latter was sufficient to show that speciesism is not necessarily associated with property status, but progressive animal politics additionally show that speciesism necessarily should not be associated with animals' property status. Full-blown property status for animals is something we need to evolve towards, and it is decidedly anti-speciesist. It will prefigure the ultimate abolition of speciesism, including regarding animals as property altogether. Francione is wrong whether we use our understanding of the dictionary, and the rule that dictionary terms should be able to have a general and stable meaning, or whether we try to come up with advanced, philosophical definitions based in pro-animal philosophy. And I believe I am the first to show this.

Animals should have the right to have anti-speciesism associated with their being owned as much as possible before the entirety of abolition is achieved. Traditional "good ownership" is enough to show that the actual philosophy associated with animals-as-property is not always a negation of animal interests, but sometimes the assertion of so-called "good owner practices" as in avoiding cruelty, etc. That alone refutes Francionism on this point. The futurist will venture even more to contradict Francionist negativism. In a far-future society, if an animal is abused, then if progressive notions of animals-as-property have duly taken hold, we would never say it is as though the animal is being treated as property in the progressive, philosophical sense that society will have evolved to accept. Just as the dictionaries will never say under "property" that it means treating animals as slaves, objects, instruments, or with cruelty, so this has a human precursor. Many abolitionists who "bought slaves" did not treat these predominantly black people as slaves, objects, etc. Their enlightened model of ownership meant using the institution to say "hands off 'my' property" to protect them, and then setting them free with dignity if possible.

We need to go beyond:

3. property status of animals = ownership + speciesism

and even:

4. property status of animals = ownership


5. property status of animals = ownership + anti-speciesism

That is, anti-speciesism as much as possible. At least eventually. It should not be supposed that we cannot eradicate speciesism as much as possible while animals are yet legally owned. This is contradicted in principle and everyday practice.

We can helpfully distinguish the dictionary uses of property and the philosophical analysis of property status. True, not all cases of property involve my progressive, anti-speciesist characteristics. But that is consistent with a distinction between property status as it is (which includes an historical understanding and possibilities for how the world may be in the future) from property status as it ought to be some time before liberation. The first is actualist, looking at how reality actually is, was, or might be, and the second is idealist, a completely different function. Property status as it is can be as negative as the Holocaust, as I have argued before, but this has no implications whatsoever for more idealistic forms that arise from critical thinking and the evolution of animal rights consciousness. Francione, if anything, provides us with the antithesis of the idea of property status for animals that we need to have in order to make the best of this often-errant grand narrative that we can oddly call past and future history. Just as he gives us the anti-thesis of advice that should be offered concerning animal law: do nothing essentially. Factory farming is a moral obscenity, for me, and so in many ways are counsels to tolerate it legislatively, well-intended though they may be. The more neutral idea of property simply as ownership is not as far removed from the most ideal form of property status as is Francione's particularly malignant concept of property status. But we should no more let speciesist society define property status than we should let speciesists define "liberation" or "violence" to exclude a favorable consideration of nonhumans.

Perhaps there is a way to salvage something from Francione's thinking though. The formula of ownership + speciesism is not a simple description of animals' property status as we have seen. And obviously it is no prescription either. But perhaps if we consider what is ideal, we can think of poles and a middle ground. Francione's concept is the negative pole on our left, or the form of property status that is furthest from ideal for animals. Pure property as ownership, the dictionary definition, is square in the middle. It is neutral in the sense that its powers can be used for good, ill, or indifferent. Finally, to the right we have my positive vision that is at the other pole. But the status of Francione's concept of property status is very different here. He is trying to convince the world to adopt his model of animals-as-property as a concept, although obviously he does not advocate speciesism. I am suggesting, contrariwise, that his is the model of animals-as-property that we should reject, and distance ourselves the most from. A rather different framework! Notice how I am not claiming that speciesism is or is not associated with property status in a confused fashion, but only that it could be. But then so can anti-speciesism. It is up to ourselves to decide, both as individuals and as a society.

Finally, one of the most interesting aspects of the property status of animals is that, for animal rightists anyway, it is self-limiting. It will help to give a few other examples of this. Most utilitarians are indirect utilitarians, according to Professor of philosophy, Anthony Skelton, at the University of Western Ontario. Last I heard, he is an indirect utilitarian. Such theorists believe that it maximizes utility not to act like utilitarians, calculating what course of action, as an example, will yield the most pleasure and least pain overall. My doctoral supervisor, Wayne Sumner, is a leading voice in this movement, for example with his book, The Moral Foundation of Rights, which outlines a form of consequentialism in which people try to act according to common-sense morality, including rights, being of good character, being a faithful friend or lover, and so forth. It is paradoxical in a way. The reason is because if people try to be utilitarians, they might be tempted to do harm or be biased in ways that are inappropriate. For example, humans might be vivisected against their will to advance medical science, which Sumner would not allow (although he allows this for nonhumans--see my article, "Animal Rights: Autonomy and Redundancy" for a critique of his position). Another example of a self-limiting status, as I call it, is being a novice. People willingly undertake to be novices, such as white belts in karate, but their goal is to overcome that status.

The property status of animals, for vegan animal rights advocates, will also be self-limiting. There will be no doubt that the institution of legal property exists, and may be used more positvely than tradition allows. But even in adopting an anti-speciesist property status, the goal will still be to abolish animals as property in the end. It will also be invoked in proper circumstances, such as when one of my dear friends at the Best Friends animal sanctuary worked to reunite people with their animals after the evacuation from New Orleans in the aftermath of Hurricane Katrina. The evacuators demanded that animals be left behind. Also, one might pay to adopt a dog from a humane society, which transaction participates in the institution of animals-as-property too. These are both paradigmatically proprietary. People in general should be considered to have acquired duties towards animals when they own them, including taking care of them medically, in terms of food, etc. The self-limiting nature of this existing property status is that vegans try not to regard their animals as property more than they have to, such as in the examples that I provided, and hope for the day when no animal will be considered property. Until that time, however, the institution undeniably exists, and ideally anyhow, it should only be associated with animal rights practices.

The logical alternatives to my model would be either:

  1. to deny that property status exists (which would be false and living in a fantasy world of psychological denial or self-deception); or
  2. to insist that falling short of animal rights should rather be associated with the property status of animals

Denying the institution of property would lead to absurdities. Someone in a park might ask, "Whose dog is this? I caught her trying to escape through the fencing." The owner would not think, "I don't own a dog. I don't believe in owning animals. So that's not my dog." But rather, "Well, she's my dog, so far as that goes. Although I am not a fan of animals as property and hope that status will be abolished sooner rather than later." The person in denial might think: "I don't own a dog. But if I translate what this person is saying, she is asking if this dog is with me as a family member or ward." Sure, someone can think this way. But it is mistaken, because it is a legal truth that the person owns the dog, and legal truths are made socially, not in individual fantasy worlds. Therefore the last thought is rather mistaken. The person does own the dog, like it or not.

I need to add one qualification to this discussion. Francione never bothers to analyze what he means by property status, so it is difficult to have a discussion of this topic. We need to piece together his position. Furthermore, he is not open to dialoguing with me respectfully, and prefers to attack me behind my back, as I have documented in previous blog entries. This is not at all how scholarship should proceed, but he leaves me with no choice. He refused to comment on my paper, "Animal Rights Law," although I asked him to in the TARS debate and he initially agreed to.

Francionist Revisionism?

Given that Francione has not explicitly analyzed one of the most key terms in his discourse, animals' property status, there is a limit to what we can say. It is the central term because his only really distinctive assertion in animal ethics is to say that animals have the basic right not to be treated as property. Could Francione turn around and claim that there could be positive associations with property status after all? Since he is never very clear, could he say that this is what he implied all along, between the lines? He never says anything positive about animals' property status. But maybe something positive "between the lines" still lurks? Maybe he will say that I am just "misinterpreting" him. A favorite verdict that he most prefers to state without ever clarifying how the analysis is mistaken, so he can brush off the view perpetually.

But there is more. He states repeatedly that so long as animals continue to be property, they will not treated well under the law. That is why he comes out with statements such as: "The property status of animals...precludes the recognition of any animal interests beyond those required to ensure that humans benefit from the exploitation of animals." (Francione, Introduction to Animal Rights, p. 98) Also, the sole right not to be considered property as the basic right logically implies that property status is purely negative. Francione entirely negates the property status of animals and so one is led to believe that property status itself is entirely negative. People only ever have the right not to be treated in negative ways. It would be odd to say that people have the right not to be treated in a positive way in any given respect.

If an advanced framework for animals' property status were to follow my own theoretical lines, it would imply that even under animal welfare but not full rights, all animals have the right to veterinary care. On his framework, the right not to be treated as property would mean that animals have the right not to be provided with veterinary care. That would be incoherent. So he has indeed painted himself into a negativist corner when it comes to property status. I am obviously not making this stuff up about how Gary lands himself in merely negative overgeneralizations about animals' property status. The idea of an advanced, evolutionary concept of property status that means protecting animal welfare, and then at a later phase in terms of general treatment, animal rights, is quite beyond the capability of his negative analysis ever to admit without basic revisions to his framework.

He can be unelentingly negative about speciesism, but not property status which he confuses with speciesism. By extension, he could say that if animals have a sole negative right, it would be not to be treated with speciesism. Indeed, he is so negative about not just property status, but even animal welfare. He cites Zoe Weil as somehow making an obviously mistaken statement when she is quoted as stating: "Animal welfare does mean something good and positive." (Weil quoted in Francione, Rain without Thunder, p. 83) Well, it can. Anyone who cannot present the positive aspects of a thing, but only and compulsively the negative, lacks a balanced world view, to say the least.

Francione has proven immune to criticism over the years. So I wonder if it would please him if one his followers would declare the helpful institution of responsible ownership of animals "abolished," in order to make his theory "work" that property status is always negative for animals? "Don't confuse me with the facts, 'cause I've got a theory..." His unbalanced negativism and reality-denial never cease to amaze me.

Conclusion: Choosing Conceptual Models Wisely

We should be very careful about what we choose to associate with the property status of animals. It might not seem to matter much now, but it will in the future if people have rotten ideas of what it is to own an animal before ownership itself is eliminated. Perhaps Francione is right to be critical and expansive about the concept of property status. But he is wrong to conserve the spirit of speciesism in his own concept, and so is not nearly revisionist enough nor positive enough. If this result is surprising, it is only because we look around us at a world mired and sullied with speciesism...but also people perceive this world using confused thinking--and in some instances even a lack of thought.


A Selection of Related Articles

Sztybel, David. "Animal Rights Law: Fundamentalism versus Pragmatism". Journal for Critical Animal Studies 5 (1) (2007): 1-37.

go there

Short version of "Animal Rights Law".

go there

Sztybel, David. "Incrementalist Animal Law: Welcome to the Real World".

go there

Sztybel, David. "Sztybelian Pragmatism versus Francionist Pseudo-Pragmatism".

go there

A Selection of Related Blog Entries

Anti-Cruelty Laws and Non-Violent Approximation

Use Not Treatment: Francione’s Cracked Nutshell

Francione Flees Debate with Me Again, Runs into the “Animal Jury”

The False Dilemma: Veganizing versus Legalizing

Veganism as a Baseline for Animal Rights: Two Different Senses

Francione's Three Feeble Critiques of My Views

Startling Decline in Meat Consumption Proves Francionists Are Wrong Once Again!

The Greatness of the Great Ape Project under Attack!

Francione Totally Misinterprets Singer

Francione's Animal Rights Theory

Francione on Unnecessary Suffering

My Appearance on AR Zone

D-Day for Francionists

Sztybel versus Francione on Animals' Property Status

The Red Carpet

Playing into the Hands of Animal Exploiters

The Abolitionist ApproachES

Francione's Mighty Boomerang

Dr. David Sztybel Home Page

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