Lawyer and legal theorist Steven Wise offered a commentary on Gary L. Francione’s book, Rain without Thunder (1996). I myself have written a response to that same book’s line of argument that all animal “welfare” laws are unethical and ineffective. I argued the contrary, presenting a unified theory which justifies animal rights laws for the long-term, and “welfarist” reduction of suffering as the best that we can manage for animals in the legislative short-term (although individuals of course can simply adopt a vegan way of life right now). In writing my earlier paper, “Animal Rights Law,” I did not have access to Wise’s commentary. However, none of my arguments would have been altered in light of Wise’s reasoning. In fact, although Wise offers one of the very few essays (there are no books, although Dunayer 2004 discusses this issue in a way that is broadly though not absolutely sympathetic with Francione’s own approach) with a sustained critique of Francione’s approach to animal “welfare” laws, I will now extensively take issue with Wise’s own critique. Let me add that I have immense respect for the work of Steven Wise. His Rattling the Cage is quite brilliant, with truly mind-opening research. I love to assign it to my students. I think everyone should read Wise's book. Wise's book review I do not think is up to the same standard, but it is still important and worth considering. When it comes to reviewing Rain, I agree with Wise in two key claims that:
(1) Philosopher Tom Regan (1983) got it right to assert that the respect principle is at the heart of rights theory; and
(2) if “welfarist” laws can “help alleviate the suffering of nonhuman animals,” (Wise 1997, 54) then that “is an entirely laudable goal.” (Ibid.)
Actually, I would backpedal a bit on the second claim. I would not applaud the injustice of speciesist “welfarist” laws. However, overall I might praise such legislation as progressive, depending on the particular law. Apart from these brief moments of agreement, I find myself unmoved by most of Wise’s arguments by far, even though I largely concur with his conclusion in favor of some “welfarist” laws. In the remainder of this entry I will briefly reconstruct Wise’s eleven key arguments, in the order that he presents them, and offer my critical responses:
(1) Wise begins by noting Francione’s claim that there is a “structural defect” in New Welfarism which is twofold:
(A) animal interests never prevail so long as animals are property; and
(B) if animals have rights now, then it is wrong to compromise them now.
I myself critique both (A) (Sztybel 2007, 8-11) and (B) (Ibid., 14-18) respectively. Wise reproduces Francione’s five criteria for acceptable animal “welfarist” reforms, and I will do likewise: (i) an incremental change must constitute a prohibition; (ii) the prohibited activity must be constitutive of the exploitive institution; (iii) the prohibition must recognize and respect a noninstitutional animal interest; (iv) animal interests cannot be tradable; and (v) the prohibition shall not substitute an alternative, and supposedly more “humane” form of exploitation. (Wise 1997, 46) I myself criticize Francione’s platform for incremental reform in “Animal Rights Law.”
Now for Wise’s response:
I argue that New Welfarism does not contain a ‘structural defect,’ but a ‘structural inconsistency’ that is necessary to achieve Francione’s goal of abolishing the property status of nonhuman animals in a manner consistent with the moral rights of animals. (Ibid.)
I take issue with the “New Welfarist” terminology rather than assuming it without comment as Wise does. Also, I think that Wise concedes too much in agreeing to a “structural inconsistency” in animal rights pragmatism (which means, for my present purposes, sometimes supporting “welfarist” laws). The theory that I present offers a perfectly consistent way of justifying animal rights laws for the long-term as well as animal “welfarist” laws for the short-term. To acknowledge inconsistency is to indicate a flaw that need not exist, although it is granted that short-term “welfarist” laws are different from and incompatible with animal rights laws. Briefly, without the full nuances of my arguments, I show that both types of law may be viewed as consistent with a higher principle of promoting the best that is really possible for sentient beings at any given time. I make it clear that this argument is not utilitarian, by the way, but poses a clear case against utilitarian abuses such as vivisection. (Sztybel 2006)
(2) Wise objects that Francione “assumes that his arguments for the moral rights of nonhuman animals apply to their legal rights as well.” (Wise 1997, 47) Regan is noted, by Wise, as maintaining that arguments for and against moral and legal personhood may be irrelevant to each other. (Ibid.) Francione himself, as noted by Wise from Francione’s Animals, Property, and the Law (1995), has professed a positivist theory of law which denies that the validity of legal rules is dependent on conformity with some moral standard. (Wise 1997, 47) Wise tries to correct Francione by stating that the property status of animals will change when legal as opposed to moral arguments are given. (Ibid.) Well, let us seek to clarify different senses of legal validity. In my view, some types of “validity” for law do not directly depend on ethics:
(i) laws being considered “valid” because democratically approved or
(ii) laws being valid since they are de facto indications of what is the law of the land, i.e., legally valid in an of themselves.
However, why make a law rule the land? Why democratically approve of a given law? I believe these questions do lead us back to ethics in the end. Surely laws are meant to be a part of what we call “the justice system.” Ideally, laws should reflect justice—an ethical notion (problematic though it may be). To argue otherwise is perhaps to be either unconcerned with laws being just, or to be positively opposed to justice. In short, I do not share Wise’s objection to moral rights as a basis for legal rights—as they ideally ought to be formulated at any rate.
(3) Wise claims that legal rights are awarded to beings who have complex cognition that is sufficient for autonomy and self-determination (in keeping with Wise’s own cause of advocating the extension of such autonomy rights to chimpanzees and bonobos). (Wise 2000) Francione and I would agree that this is a speciesist basis for legal rights, designed to privilege those who are human(-like). Even Wise himself, in another work later than his book review, acknowledges: “If I were Chief Justice of the Universe, I might make the simpler capacity to suffer…sufficient for personhood,” (Wise 2002, 34) however, he notes that the capacity to suffer “appears irrelevant to common-law judges.” (Ibid.) Yet although such rights for, say, chimpanzees may be speciesist, they can be defended as logical extensions of human rights in the short-term and as the best of limited dilemma choices open to legislatures. Non-speciesist rights may still be advocated in the long-term. In any event, we cannot take it for granted that rights are to be organized around autonomy as Wise seems to assume. Other models include rights based in welfare (Sumner 1987—a source Wise himself considers in his review) or a combination of both rights to autonomy and to welfare (Gewirth 1978; Pluhar 1995; Sztybel 2006) As an additional note, Francione used to support the Great Ape Project (GAP), which partly overlaps with Wise's initiative, but Francione has since changed to opposition against GAP on the grounds that it is speciesist.
(4) Wise objects to Francione’s use of the term “animal” firstly, because it excludes humans and reinforces the idea that humans are not animals, (Wise 1997, 49) and this supposedly “endangers the prospect of achieving any legal rights for nonhuman animals, as it permits opponents to characterize humans and nonhuman animals improperly as different in kind rather than degree.” (Ibid.) Wise has a point here, formally speaking. But in substantive terms, “animals” as a short-hand is used by speciesists and anti-speciesists alike. “Humans” is a short-term for referring to “human animals” or “human beings.” Using “animals” in a similarly abbreviating way avoids tedium, not any truth that of course humans are animals too. I do not know if those who deny humans are animals are a politically significant faction (perhaps the upsurge of fundamentalist Christianity in the United States means that they are), but it is not a theoretically significant issue. Moreover, deniers that humans are animals will never be convinced by a use of terminology, or swayed either way, if in doubt, by a choice of words. Perhaps, though, some such people can be moved by arguments which use the abbreviation “animals” in some passages.
(5) Wise objects to Francione’s definition of “animal,” secondly, since Francione follows Regan’s definition of “animal” as a subject of a life, (Ibid.) which Regan identifies with the class of mammals aged at least one year. But Wise points out that Animalia has more than a million species, and only 4,000 of them are mammals. (Ibid.) Wise unwisely claims though that there is no evidence that mammals other than chimpanzees and bonobos have a sense of the future, an emotional life, or a psychophysical identity over time. (Ibid., 50) Take a pig by way of counter-example. Of course they evidently have feelings and anticipate feeding time! (I will not even tread on the well-trod terrain of evidence in this field.) Pigs do not bandy about phrases such as “psychophysical identity over time,” but they are inherently aware of their minds (i.e., everyone is conscious of their consciousness ipso facto from being conscious in the first place) and bodies, and their memories and anticipations do not mysteriously exclude these core aspects of pigs’ lives. Wise writes that Animalia is too broad at the same time. True rights for chimpanzees might be endangered if they are equated with rights for mosquitoes, (Ibid.) but I will not deal with this point here, worthy of attention though it be. Francione himself does not evidently use “animals” in an overly broad sense that would give equal rights to mosquitoes compared to humans in dilemmas, and rights to nonsentient animals such as amoebas perhaps are.
(6) Next, Wise disputes Francione’s model of rights as involving prohibitions and claims that are correlated with duties. (Ibid.) Rather, Wise observes that the most fundamental human rights involve immunity rights. Immunity rights do not merely forbid or negatively command, but impose disabilities which “legally incapacitate or deprive entirely of power.” (Ibid., 51) Is this, however, a distinction of much import? Laws do not mentally or physically “incapacitate” those who might do wrong: they merely order people not to do things just as prohibitions do, and create duties of a legal nature. Suppose claims are used. Wise fails to account for the fact that society can claim rights for all sentient beings in principle (presumably in the far future), and guardians or trustees can claim rights for animals (and mentally disabled humans, for example) in practice. So animal rights law that relies on claims is not obviously so problematic. In any case, when immunity rights are infringed, does not a claim need to be made in court?
(7) Wise writes on Francione’s assertion that he’d give a drink to a thirsty cow at a slaughter facility but would not approve a law providing that all such cows be given water. I criticize Francione on this point as well. (Sztybel 2007, 21-22) Wise declares that it is “nonsense to characterize the passage of legislation requiring cows be given sufficient water on the way to the slaughterhouse as violating the rights of cows.” (Wise 1997, 53) I think Wise misses the point here, that laws approving of slaughter are at variance with animal rights. However, Wise is credible in claiming that if he were given insufficient water as a slave, he would pray for a law granting him water rations. Also, I show that such a water-for-cows law may be consistent with a philosophy that advocates what is really best for sentient beings at every single juncture, a philosophy that also justifies strong animal rights that may be adopted by individuals in the short-term and by societies in the long-term.
(8) Wise admits that reinforcing the property status of animals “certainly is a ‘structural defect’ in the New Welfarist position, as Francione complains. However, that does not mean that the New Welfarist position is structurally defective.” (Ibid., 54) Is this incoherent? Anything that has a structural defect is structurally defective. A vase that has a crack is cracked. Wise presses on: “New Welfarism is not structurally defective; it is structurally inconsistent. But this is how it must be structured to avoid violating Kant’s Categorical Imperative [sic—a modified version of that Imperative, extended to animals, as in Franklin 2005—DS] and Regan’s respect principle.” (Wise 1997, 54) It plays into Francione’s hands to concede inconsistency, or at least I try to show how that charge does not apply to a sophisticated animal rights pragmatist position. It is a very serious structural defect indeed for a view to suffer from logical inconsistency. Also, I think it needs to be acknowledged that “welfarist” laws are not fully respectful of animals to the extent of animal rights, although they might still win as much respect as can now be won.
(9) Wise grants that “welfare” laws might delay animal rights, but pleads that “future generations have no legal rights and it is extremely controversial whether they have moral rights either.” (Ibid., 55) Yet we must have regard for future beings, and favor rights for them as much as possible. Typically polluters and the like resort to these sorts of arguments discounting future beings and the world they inherit. This is a dodge on Wise’s part.
(10) Wise argues that rights cannot be incrementally assembled, and that they will “occur all at once” (Ibid., 57) in a “quantum” leap (Ibid., 56) based on the “intuition, judgment, and sense of what is both right and appropriate” of judges. (Ibid., 57) They will not come by logic alone, he warns. (Ibid.) I fear this account does not do justice to the role of logic, and places too much emphasis on intuitionism, which I argue elsewhere is a logically bankrupt route for moral theory. (Sztybel 2006, 8-9) However, in any case, we are mainly discussing legislators who make new laws in this context, not judges who interpret existing laws. Perhaps Wise thinks of judges since it is they that he hopes to persuade by extending rights to chimpanzees and bonobos, based on criteria for rights now judicially applied to children, for example.
(11) Wise wonders why judges would create a new legal norm of a “proto-right” that “duplicates the existing norm of legal rights?” (Wise 1997, 58) Here I do not think that Wise reflects Francione’s own thinking, which itself could be rendered far more clearly by Francione himself. Francione is not speaking of legislatively passing proto-rights into law in a way that would duplicate rights. Rather, Francione is advocating prohibiting specific practices that would be banned if animals’ interests were wholly respected. Such bans are consistent with a principle we can call a “proto-right.” Or at least, that is how I interpret Francione. Such a view does not merely duplicate rights, but advocates measures that self-consciously fall short of full rights.
I think Wise’s response overall is largely a wrong execution of the right idea, for as I argue, Francione himself (1996) is wrong in opposing all animal “welfarist” laws. “Logic plays no favorites,” though, as Regan penned. (Regan 1983, 183-184) We require not only the right conclusions or opinions. We also need right reasoning, using the classical rules of logic (bringing to light validly entailed implications of what is evident and ruling out all fallacies), without which we cannot be confident in coming to any conclusions. Francione, though, I have argued does worse: he urges both the wrong conclusion and also relies on flawed reasoning. I hope, however, that I have provided a case in favor of limited forms of animal “welfare” laws where Wise’s arguments have seemingly failed.
 Joan Dunayer (2004) puts “welfare” in quotation marks when referring to animal welfare. In Sztybel 2006, 1-6, I show further that speciesist forms of animal “welfare” are perhaps better conceived of as animal illfare in nonspeciesist terms. Hence I will put “welfare” in quotation marks when referring to speciesist so-called forms of animal “welfare.”
 Francione used to favorably cite Regan, till the two had a falling-out; more recently Francione (2000) defends a basic right not to be considered property—which I will argue on another occasion is surely a move for the worse compared to Regan’s insistence on a most fundamental right to be respected.
 I have since added to this critique that “new welfarism” is also inappropriate in its “new” designation, since Henry S. Salt (1980), the late Victorian animal rights commentator also advocated a hybrid advocacy of animal rights in the long-term and “welfarist” reforms in the short-term. This means that animal rights pragmatism, as I call it, is hardly anything “new.”
Dunayer, Joan. 2004. Speciesism. Derwood: Ryce Publishing.
Francione, Gary L. 1995. Animals, Property, and the Law. Philadelphia: Temple University Press.
———. Rain without Thunder: the Ideology of the Animal Rights Movement. Philadelphia: Temple University Press.
———. 2000. Introduction to Animal Rights: Your Child or the Dog? Philadelphia: Temple University Press.
Franklin, Julian H. 2005. Animal Rights and Moral Philosophy. New York: Columbia University Press.
Gewirth, Alan. 1978. Reason and Morality. Chicago: The University of Chicago Press.
Regan, Tom. 1983. The Case for Animal Rights. Los Angeles: University of California Press.
Salt, Henry S. 1980. Animals’ Rights: Considered in Relation to Social Progress. Clarks Summit, PA: Society for Animal Rights. Originally published in 1892, with revised editions in 1905 and 1922.
Sumner, L. W. 1987. The Moral Foundation of Rights. Oxford: Clarendon Press.
Sztybel, David. 2006. “The Rights of Animal Persons.” Animal Liberation Philosophy and Policy Journal 4 (1) (2006): 1-37.
———. 2007. “Animal Rights Law: Fundamentalism versus Pragmatism.” Journal for Critical Animal Studies 5 (1): 1-35.
Wise, Steven. 1997. “Thunder without Rain: A Review/Commentary of Gary L. Francione’s Rain without Thunder: The Ideology of the Animal Rights Movement.” Animal Law 3: 45-59.
———. 2000. Rattling the Cage: Toward Legal Rights for Animals. Cambridge, MA: Perseus Books.
———. 2002. Drawing the Line: Science and the Case for Animal Rights. Cambridge: Perseus Books.
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".
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