Animal Protection > AR Interviews

DEBATING FRANCIONE (and loving it)

The hard-hitting US lawyer talks to Claudette Vaughan
(First published in Vegan Voice)

There's a new era coming and it's not called "millennium"; it's called "Francionian". Almost single-handedly, Gary Francione has forced the AR movement to confront an enormous dichotomy that exists between a welfarist stance and an animal rightist philosophy. His viewpoint is that if animals have any moral significance at all (ie, they are not things to whom we have no direct moral obligations), then we must extend to them one right – the right not to be property.

How Francione differs from all other theorists who have gone before him, including Peter Singer, is that his theory does not rest upon cognitive capacity (beyond the ability to feel pain) for possession of this one basic right. Any being who is sentient by definition has an interest in continued life because sentience is only a means to an end – that of survival. Moreover, he argues, any being who is sentient is also by definition self-aware because when that being experiences pain, they know that it is they who feel pain, and not some third party who has the experience.

Francione has often been called "uncompromising" by commentators in the past, but this label somehow suggests a kind of "elitism" which simply is not true. His work invites you to defy. Veganism as defiance, direct action as defiance, abolition as defiance ... [against the machine].

We therefore decided to debate Professor Francione, not because we think he is wrong (we don't), but because we wanted to see for ourselves how to work for total abolition when in contrast, up until now, the AR movement hasn't even been able to get something as relatively basic as the Draize test banned.

Q. You have said that the AR movement must have a separate destiny away from welfare reform. Is it fair then to say that your work centres on abolition not reform?

A. Yes, my work has been directed towards providing legal and philosophical arguments in favour of abolition. The abolitionist position is that the institution of animal property is morally unjustifiable, just as was the institution of human property or slavery. The abolitionist urges that we abolish the institution of animal property and that we should not support measures that supposedly make animal slavery more "humane". The welfarist position maintains that we should support such measures. Some welfarists seek reform because they believe it is acceptable for humans to use animals if they do so "humanely". Some welfarists seek reform because they believe that reform will eventually lead to abolition.

I have made two primary arguments against the welfarist or reform position. First, as a theoretical matter, reform misses the primary moral point. It is always better to cause less pain and suffering than more, but the real question is whether humans are justified in imposing any suffering at all on animals incidental to our use of animals as property. The 19th century reformists argued that it was better for a slave owner to beat his slave four times a week rather than five. The abolitionists argued that all human beings had at least the right not to be the property of another; that to be property meant that a human had no value except that accorded the slave by the slave owner. The abolitionist position was that it was wrong to beat the slaves at all because the institution of slavery was itself morally unjustifiable and it did not matter how "humane'' we made slavery. Putting a string quartet on the way to the gas chambers – as the Nazis did during the Holocaust – may make things more humane in some sense, but that misses the point, doesn't it?

I maintain that if animals are morally significant at all, then we must abolish the institution of animal property. We must stop creating and owning domestic animals or using wild animals as means to our ends. My view is that we should abolish animal slavery and not seek to reform an inherently immoral institution.

The second reason that I reject welfarism is that, as a practical matter, welfarist reform does not work. We have had animal welfare laws in most western countries for over a hundred years now, and they have not done very much to reduce animal suffering and they certainly have not resulted in the gradual abolition of any practices. This is a very important point.

Welfarists are always talking about the need to reduce suffering. But in what ways have welfarist reforms reduced suffering in any meaningful way? Peter Singer was recently quoted in an American newspaper as saying that the agreement by McDonald's to give battery hens a few inches more of cage space was the most significant development for animals since Peter wrote Animal Liberation in 1975. Twenty-five years of welfarist reform and the best we can show is a larger battery cage. Maybe Peter finds that thrilling; I do not. I find it to be a very clear indication of what I have been saying for a decade now – welfarist reform is useless. Welfarists also talk about reform leading to abolition. Again, where is the proof? In what instances has the regulation of exploitation led to Its abolition? Again, the welfarist has nothing to offer.

As to why welfarism fails, that is complicated and was the subject of an entire book I wrote, Rain Without Thunder: The Ideology of the Animal Rights Movement. In a nutshell, the reason has to do with the property status of animals. If animals are property, then they have no value beyond that which is accorded them by their owners. Reform does not work because it seeks to force owners to value their property differently and to incur costs in order to respect those animal interests. Our legal and political systems are based upon strong notions of property rights. There is a very strong reluctance to impose the costs of any significant reform on animal owners because that will decrease the value of that animal property as far as those owners are concerned. There is usually controversy when we seek to regulate the use of any property, even in order to protect human interests; that reluctance only intensifies when the regulation is imposed to protect the interests of the property itself. Property owners do not like regulation because they believe that as owners, they are the parties best suited to judge the value of their property.

Q. Surely the demarcation line is easier to see In social theory than at a grassroots level, or would you beg to differ there?

A. I beg to differ on the theory/practice distinction. Before undertaking any practical effort, there must be a theory that informs that action. In other words, a social movement must have a theory if it is to have any action at all. The problem is not whether we ought to be concerned with theory as opposed to action; the problem is that the current theory is not producing any useful action. The theory that informs the modern animal movement is the welfarist position of Peter Singer, who maintains that animal advocates should support any measure that "reduces suffering". That theory has had disastrous practical results. Almost any proposed change, such as giving an extra inch of space to a battery hen, or eating only non-crate veal, can be portrayed as "reducing suffering". Singer's theory allows large multi-million dollar animal welfare organizations to come up with very moderate campaigns and then demand that we all jump on the bandwagon because this will "reduce suffering". Singer's theory actually encourages animal exploiters to make things as horrible .for animals as they can precisely so that they can give a tiny, tiny bit – and thereby "reduce suffering" – in response to the moderate campaigns of animal welfare organizations.

I am suggesting that we need a new theory to replace the one that we have and the one that is, as a practical matter, simply not working. I am not unrealistic. I recognize that even if we adopt an abolitionist theory, abolition will not occur immediately. Change will necessarily be incremental. But it is my view that the explicit goal must be abolition and that abolition must shape that incremental change.

In Rain Without Thunder, I argued that the most important form of incremental change was educating the public about the need for abolition rather than the peddling of welfarist band-aids. In the US, there has never been a sustained abolitionist educational campaign undertaken by the movement; the American movement has always been embarrassed about being "radical". We do not want to alienate the "mainstream". We have never accepted that the "mainstream" is polluted and embraced the challenge of educating the "mainstream" with a powerful and unified radical message about the need for abolition.

Consider what would happen if the international animal movement had a sustained and unified campaign promoting veganism. Imagine what could be done if a significant portion of the resources of the movement worldwide were directed toward making people aware of why they should not eat animal products at all. At the end of five years, we would certainly not have achieved world veganism, but we would probably have reduced the consumption of animal products considerably more than we have with these "eat red veal" campaigns.

And what would we have given up if we were to pursue this route? Well, Singer claims that two inches of cage space is the best thing to happen to farm animals in 25 years; it is certainly arguable that making as few as 100 new vegans in five years would "reduce suffering" more than two inches of cage space in 25 years. I understand that a sustained, unified vegan campaign would require that the movement agree that veganism should be a defining principle of the movement, and the fact that there isn't even agreement on that point may be the real problem. I am not sure that many so-called "animal rights" people are really in favour of abolition – not if it means giving up cheese on their pizza or milk in their coffee or fish or "free range" eggs and meat.

Q. What about the charge that you are a Professor of Law, and in being so you would therefore tend to see things through only a lawyer's eyes?

A. I have absolutely no illusions about the usefulness of the legal system or lawyers! Unlike many animal lawyers, I very emphatically do not believe that the property status of animals will be altered, or even significantly changed, by the law. Veterinary malpractice cases, cruelty cases, and cases brought to try to enforce various provisions of welfarist regulatory schemes (such as the Animal Welfare Act) are pretty much meaningless in terms of reducing suffering, and have absolutely no effect on the property status of animals (although such cases have created a cottage industry for many US "animal rights" lawyers).

The exploitation of nonhumans will not stop without there being a revolution of the human spirit and that will not happen without there being visionary revolutionaries trying to change the paradigm that has become accustomed to and tolerant of patriarchal violence. The job of the animal rights lawyer is not to change the system as lawyers, we are part of a system that exists to protect property interests. Our job as lawyers is to keep social activists out of trouble as a general matter and to facilitate their efforts. In my view, a useful "animal rights" lawyer is a criminal lawyer one day, helping activists who are charged with civil disobedience; an administrative lawyer the next day, helping activists to obtain permits for demonstrations; and a constitutional lawyer the next day, helping students who do not want to vivisect as part of their course work or prisoners who want vegan food. But the lawyer always serves and protects the activist. It is the activist, and not the lawyer as lawyer, who helps to change the paradigm. The notion of the "animal rights" lawyer as getting the system to change the property status of animals by decision of a common law court or legislation or constitutional amendment, is, in my view, the height of folly.

Q. There are many animal activists, however, who do place their faith in the legal system as a vehicle for change and for a kind of "justice" for the animals. This seems to be the way that the AR movement is going.

A. I agree with you and I think that development is unfortunate. Many animal activists have way too much faith in the legal system and do not recognize that a legal system merely reflects the economic structure of the society, and that law reinforces the existing property structure. This is not a mere matter of theory; it very accurately describes the reality that a legal system which exists to protect private property is not going to yield very much or very easily to an overtly anti-property position. Isn't that obvious?

Animal activists believe – just as children believe in Santa Claus – that the legal system is an institution that is devoted to some abstract notion of "justice". It isn't. The law is a political institution that exists to serve the interests of wealthy white men and gives soporific crumbs to everyone else. Anna Charlton, who is my life partner as well as a brilliant animal rights attorney and educator, often points out that the legal system will never respond differently to animal issues unless and until there is significant social change in the form of more people accepting the legitimacy of abolition – veganism – in their daily lives Only then will the legal system begin to be a useful tool in the struggle. There are some lawyers here, such as those involved in the Animal Legal Defense Fund, who promote the notion that it is the law that will be in the forefront of social change for animals. But these people all make a living from practising law and they are not likely to say otherwise, are they?

Q. Where does veganism fit into the picture?

A. Veganism is the single most important issue in the movement. Veganism is the abolitionist principle implemented in one's own life. Anyone who maintains that they are an "animal rights" advocate but are not vegan is not to be taken seriously. Many US animal advocates criticize my view that veganism should be the central plank of the animal rights platform. They claim that it is "elitist" to maintain that there are moral baselines, such as veganism. But that is like saying that it is "elitist" to reject rape as a baseline principle of a movement for the rights of women. Perhaps their reaction reflects the unfortunate reality that many so-called "animal rights" advocates are not vegetarians much less vegans. It is clear, however, that if animals have any moral significance at all – if they are not merely things – then we cannot justify using them for food. Moreover, veganism is the one truly abolitionist goal that we can all achieve – and we can achieve it immediately, starting with our next meal. It is simply inconsistent to maintain that you accept an animal rights position but that you are not a vegan.

Q. A weakness of all ideologies, including animal rights, is a need to believe in single stroke, cure-all solutions, which can translate ultimately into a debilitating passivity when faced with the reality of the situation.

A. I don't buy this "passivity" argument at all. The problem is that activists have become infantilized and believe that they can't do anything except through large groups. "Activism" in the US has become writing contribution cheques to animal welfare behemoths like the Humane Society of the US and PETA, which look more and more alike every day. Many "activists" believe that the campaigns of these large organizations constitute "activism". But these campaigns are always welfarist and do nothing to help animals or to dismantle the property paradigm; these campaigns are intended as fundraising vehicles. How does promoting welfarism help "passivity" in any sense? If we agree that welfarist campaigns make little if any change, then we are just fooling ourselves by continuing to support those measures. Pursuing welfarist campaigns does not solve the problem of paralysis; it guarantees its perpetuation.

Again, I do not believe in a "single stroke" solution. I know that is impossible as a practical matter. What I do promote is incremental change, but change that is predicated explicitly on abolition and not regulation. Our becoming vegan is incremental – it happens one at a time – but it is abolitionist. Our educating others about the need for abolition is incremental – we educate people one at a time – but such incremental change is a necessary step toward justice for nonhumans.

Q. Is it true to say that what you are insisting upon is a revolution throughout our entire value system, not just to get the law changed to accommodate some nonhumans, such as the great apes, that humans regard as "rationally" worthy?

A. Yes and no; In one sense, my position that we must abolish and not merely regulate our institutionalized exploitation of animals: seems to be very radical. In another sense, my position is not radical at all and rests on a moral foundation that most of us already except.

The central argument of my book Introduction to Animal Rights: Your Child or the Dog? is precisely that the abolition of the property status of animals follows from moral beliefs that we already claim to accept. As I explain in the book, most of us already accept that animals have at least some moral value in that most of us agree that we do have moral obligations to animals and we cannot have moral obligations to rocks or plants. But if animals have any moral value at all, then we are no longer justified in treating them as our property and that leads to an abolitionist; conclusion. I am very excited about Introduction to Animal Rights because it takes the reader from a position that most people can accept as a starting point, and shows how ideas we already accept lead to more radical conclusions than we have been willing to recognize.

The theory that I articulate in Introduction to Animal Rights is very different from the position articulated by Singer or Regan. My theory differs from Singer's in that Singer rejects rights and maintains that we ought to take animal interests more seriously, but that we need not abolish animal exploitation if the benefits to humans justify its continuation. Although Regan endorses a rights view, he limits rights to mammals who have achieved a certain level of cognitive functioning. Moreover, Regan never really considered his rights theory as addressing the problem of the property status of animals. My view accords the one right not to be property to every being who is sentient – capable of feeling pain – and does not require any other cognitive characteristic.

Although I was one of the original signatories of the Declaration on the Rights of Great Apes, and I was the first legal theorist to call for legal rights for great apes in my chapter, "Personhood, Property and Legal Competence" in "The Great Ape Project", I have always made clear that although I regard the great apes as "persons", I regard dogs, mice, and fish as "persons" as well. I am very concerned about those who maintain that great apes should have rights because they are "like us". That position suggests that those nonhumans who are not "like us" are somehow "lesser" animals. The problem is one of hierarchy. It is not wise to promote a new hierarchy – humans and great apes over other animals – in place of humans over all other animals. Let's get rid of the hierarchy altogether.

To the extent that I do maintain the necessity of "revolution", let me make clear what I mean. I am absolutely and unequivocally opposed to any sort of violence directed towards humans or nonhumans. I am firmly committed to the principle of non-violence. The "revolution" I seek is one of the heart; I try to get people – especially other men – to question and reject violence. I am interested in "overthrowng" patriarchy and the idea that some beings – whether white, rich males or white males generally or humans generally – have greater "worth" than other beings.

Q. Thinking of animals as "persons" would go a long way towards establishing a better relationship between humans and nonhumans, by breaking down that Western dualistic "us versus them" mentality. In Introduction to Animal Rights are you also arguing that these "persons" be given similar rights to those held by citizens, i.e., basic rights to have their territory, their selves, their bodies and their space not be violated by human intrusion or abuse?

A. No. I argue that animals should have one right: the right not to be our property. Indeed, I argue that a "person" is any being who is entitled to this one right and all sentient beings should be regarded as "persons", or as holders of this one right not to be property. If we accepted that animals have this one right, we would be committed to abolishing animal exploitation because our use of animals for food, experiments, product testing, entertainment and clothing assumes that animals are nothing but property. If we accepted that animals have this one right, we would stop, completely, bringing domestic animals into existence.

I am not interested in whether a cow should be able to bring a lawsuit against a farmer; I am interested in why we have the cow at all.