It is well known that Francione rejects animal “welfarist” laws. In “Animal Rights Law: Fundamentalism versus Pragmatism,” (published in the Journal for Critical Animal Studies and reprinted under academic articles on this website) I conceded that Francione’s “proto-rights” proposals that he would accept as law are “abolitionist” as he says (a classification which I still accept). However, in that essay I denied along with Francione that his proposals are animal "welfarist." In earlier drafts of my paper, pre-publication, I argued that Francione in fact offers animal "welfarist" legislative proposals. I am now switching back to my original interpretation for reasons that will become crystal clear presently. In my published article, I wrote on p. 14:
We must be careful not to object to Francione’s legal proposals because they are “welfarist” in his sense of merely regulating animal exploitation without abolishing it, or treating animals more “humanely” while instrumentalizing them. It is true that the animals are treated better, and there is no wholesale abolition. However, he does seek to contribute immediately and in the long-term to abolition with the particular prohibitions that he sets out, and also to strongly recognizing animal interests so that sentient beings are not treated as mere instruments. He does not pretend to perfect abolition or de-instrumentalization, but only to imperfect increments of a very particular sort.
However, recently, I have been forced to reconsider my position in thinking about this state of affairs. Francione’s proposals for legislative reform are still abolitionist or tending towards abolition—but so is my own stance as I explicate in the essay. Altogether, I thought that Francione’s ideas of protecting an entire animal interest really does resemble animal rights as he claims, and abolishes part of animal exploitation. Thus, it did not seem fair to lump his proposals with other animal “welfarist” legislative proposals.
I now wish to rationally reconsider how to classify his proposals. First of all, everyone would agree that his proposals (which may involve protecting a whole interest, such as liberty of movement for hens, or alternatively, abolishing a whole area of animal exploitation, such as animal circuses) are not fulfilling animal rights. Animal rights proposals would protect all interests, not just some interests, and they would abolish all areas of animal exploitation, not just some. Francione calls his proposals “proto-rights.” I do not wish to dispute that usage. I agree that one can “grow” animal rights by first protecting one or some interest(s) and eventually protecting them all. In my paper, I use my own version of “proto-rights,” which is not as stringent, and allows protecting degrees of interests of animals, not just entire interests—the more the better. So I would approve of protecting 80% of liberty of movement in cases in which protecting the whole interest—namely 100%—is not feasible. So just because we all agree that his proposals are “proto-rights” proposals does not logically entail that they are not animal “welfarist.” My 80% protection of liberty of movement is both proto-rights and “welfarist.”
It would be fair to evaluate whether Francione deals in “welfarism” by considering his definition of “welfarism” and of terms intrinsic to animal “welfarism.” By Francione’s own definition, an animal “welfarist” seeks to regulate animal exploitation rather than to abolish it. However, by protecting one whole interest such as liberty of movement for hens, this regulates the practice of confining hens for eggs; it does not abolish the practice. The Francione sympathizer would then say, though, that although the entire practice is not abolished, a disregard of an interest is prohibited, and therefore a piece of abolition is achieved. Indeed, that very reasoning is, again, why I initially agreed that Francione as a theorist is not a “welfarist.”
In response to Francione, others, and my original writing on this subject, I offer two arguments. The first will examine the meaning of regulation, the most key term to animal “welfarism” in Francione’s own definition which I used in my essay. The second will try to use the elementary principle of classification based on greatest similarity to settle this conceptual conundrum.
First, what is a regulation? In law, it involves adjusting or controlling something, in this case animal exploitation. It makes a practice conform to guidelines. However, that is what ensuring enclosures with full freedom of movement for hens does. So the substitute form of confinement conforms to Francione’s own definition of animal “welfarism." Note here that Francione’s criteria for acceptable reforms, it will be recalled, forbid substituting a more humane form of animal exploitation. That restriction would presumably be in place because such substitutions are what animal "welfarists" do. Yet that is what a fully generous enclosure for hens would mean.
My next argument systematically compares similarities and differences. The fact is, Francione’s proto-rights proposals are partly like animal rights, and partly like animal “welfare.” Let me explain. First, protecting one whole interest resembles animal rights in that under true animal rights legislation, that whole interest would also be protected (along with, ideally, every other interest of animals). However, we can accurately characterize animal “welfare” laws as disregarding animals’ interests. That is roughly what exploitation is: certain practices, especially of usage, that do not respect the interests of others. Francione’s proposal resembles animal “welfarist” laws in that although one interest is wholly protected, the rest of the animals’ interests might be left entirely unprotected.
Now logically, if something is partly like X, and partly like Y, to make an overall assessment on how to classify the thing, one would need to decide what the thing most closely resembles. For example, an Aboriginal community might be examined to determine if self-government is in place. It might not be perfectly the case. After all, the Native government might in some ways interact within a scheme of federal politics. However, if the community’s governance is more like self-government than submitting to the authority of some other power, then we can reasonably conclude that self-government exists, if only to some degree—or imperfectly. Such is the case of the Inuit nation of Nunavut in northern Canada, my own country of residence.
I was charitable in my earlier interpretation of Francione's work. Charity of interpretation means being generous, and interpreting arguments the way their authors would wish, even if it is possible to construe them in a way contrary to how they would like. I believe in charity since it makes for civilized dialogue and helps to avoid misunderstanding, among other benefits. However, owing to my reconsideration, I can see now that I was only too generous.
Francione’s proto-rights proposals more resemble animal “welfare” laws than animal rights laws. This conclusion can be guaranteed mathematically. Consider that in the hen case, only one interest would be wholly protected. The rest would be woefully violated. The total number of interests an animal would have is never specified by Francione, nor myself, for that matter. But whether the total number is 4, 6, 8, or 36, only one interest being protected means that many more interests are disregarded. Disregarding interests is what welfarist exploitation does. Therefore, straightforwardly, such a proposal of Francione’s more closely resembles “welfarist”—really illfarist—animal exploitation than animal rights. We compute this fact by counting and comparing the number of interests that are protected versus unprotected in Francione's proposals.
Therefore it is fair to conclude overall that his proposals are animal “welfarist.” Or if it is insisted to be a hybrid of animal “welfare” and animal rights elements, then it is not an equal merger. By far the dominant part is the animal “welfarist” component. This conclusion could only be subverted by holding, absurdly, that things should be classified based on what they are dissimilar to, or by "conveniently" ignoring the disregarding of animals' interests in Francione's proposals.
Another sort of practice that Francione approves, as I note in my essay, is protecting against some insults to bodily integrity, such as dehorning of cattle, while permitting other insults to bodily integrity such as hot-iron branding. This is problematic not just because, as I noted in the essay, it blatantly contradicts the notion that interests must be protected without compromise, although banning such a practice as dehorning entirely might be seen as vaguely abolitionist in character. Approving such a state of affairs means that an even tinier portion of animals’ interests are respected, and even more disregarded (e.g., only a tiny part of bodily integrity is protected), thus increasing the resemblance to animal “welfarist” laws. That is because not even one whole interest is protected, but in a way, only one practice relevant to protecting that interest.
There is a third kind of acceptable proposal to Francione: banning an entire area of animal exploitation. Is that more like animal rights or animal “welfare”? I would say this is the most like animal rights perhaps of Francione's incremental reforms. But since only one area would be banned, and animal rights involves banning all of the many areas of animal exploitation, it can be argued that even such a state of affairs, though partly abolitionist, more resembles animal “welfare” law, or contributes to an overall body of animal “welfare” law since that is what is what remains after the reform is completed. There would still be interests disregarded in any number of other areas of practice. Such a law would join an existing body of speciesist laws, which, ironically, is what readers of Rain without Thunder will recall Francione denounces in those who would approve of laws providing water to thirsty cows awaiting slaughter. Is it “unfair” to look at the whole body of law? In all fairness, animal rightists are aiming to change the whole body of laws. Parts cannot be realistically understood in total abstraction from the wholes of which they are a part. Such bans are in a way partly abolitionist, but they nevertheless leave an overall state of lack of abolition. I agree that such bans are perhaps the strongest forms of incremental reform that animal rights advocates can aim for though. They are intrinsically quite abolitionist, although they form part of a body of law that is still not characterized that way. This sort of ban, though, is not the most original or interesting part of Francione’s legislative proposals, since animal rights people have long looked forward to banning types of exploitation even if not all of it can be eliminated at once. The two types of legislative proposals considered previously that are original to Francione though are mostly animal “welfarist” in character on any fair or objective reading.
A fresh example would be in the field of worker’s rights. Suppose management is willing to concede full dental benefits to negotiators on behalf of striking workers. That would be “welfarist” reform for workers if no other area of exploitation is addressed such as lack of holidays, poor pay, hazardous working conditions, etc. The dental benefits might just be a token benefit in that context.
I am not denying any degree of resemblance to animal rights in Francione’s proposals, nor am I disputing whether some progress is made towards abolition of animal exploitation. I am just saying that his suggestions more resemble animal “welfare,” and I believe that I have objectively proved my point.
Let us anticipate and answers some possible objections to my analysis.
Objection 1: Having achieved a fraction of something does not imply that animal rights is not adhered to. If a company only has a share of the market, it is still wholly that company that has the share that it has. Similarly, whatever share animal rights people have of how animals are to be treated legally is 100% animal rights.
Reply: This analogy would work if a certain sector of how animals were treated legally conformed to animal rights. One might think of the case of a country that signs onto the Great Ape Project. Would that not be a portion of animal rights? Interestingly enough, yes and no. Ape rights are animal rights—yes. Yet granting rights to apes on the grounds that they are like humans is contrary to animal rights generally, and that is why most people at this stage would sign on with the Project. However that may be, the analogy does not work in the case of Francione’s own proposals. According to Francione himself, if only a certain percentage of an interest is secured, that is not enough to be characteristic of animal rights. Similarly, securing only one of several interests and having all other interests violated is not characteristic of animal rights either. So the analogy fails since no sector is secured that is describable as animal rights given his proposals, especially the first two kinds considered (protecting a whole interest, or abolishing, say, dehorning but not hot-iron branding), but also even if a certain kind of animal usage (e.g., animal circus acts) is abolished on anti-cruelty grounds rather than as a part of implementing full-fledged animal rights. However, if we only pay attention to the protected whole interest in Francione's proposal, is that not consistent with animal rights, so long as we ignore the other neglected interests? Yes, but neglecting animals' interests and considering them unimportant to reform or even analysis is something that speciesists do, not animal rightists. Also, we are not disputing whether protecting a whole interest in isolation is consistent with animal rights. We are asking if broader proposals with implications beyond just the one interest (e.g., hen enclosures with maximum bodily movement) are similar to animal rights. So on an animal rights analysis which refuses to overlook disregarded interests, and which also resists a purely fragmentary view, his proposals are, of course, "welfarist."
Objection 2: We can focus on only one interest at a time to build towards a full recognition of interests.
Reply: I am not suggesting otherwise in many cases. Only, this idea seems to contradict Francione’s principle, which I quote in my essay, that we cannot trade away interests of animals today so that they can have rights tomorrow. We “trade away” interests by leaving most interests unprotected and only safeguarding one as Francione suggests, in hopes of building towards animal rights—the protection of all interests entirely.
Objection 3: Percentages or fractions of abolition count as “abolitionist” and are not “welfarist.”
Reply: On this reasoning, fractions of interests being protected would be abolitionist too, as I argue in my paper, and this also makes progress towards abolition. Francione understandably would not welcome such a consequence. For then, absurdly for Francione, bona fide “welfarist” legislation that does not even protect whole interests would not be “welfarist,” which is a complete self-contradiction generated by such an interpretation. Everyone else would consider such laws to be “welfarist,” including Francione in other contexts.
Objection 4: At least there is progress towards full animal rights in the long term.
Reply: My own framework too has animal rights in the long-term, but that does not prevent anyone from calling laws that I approve in the short-term as “welfarist.” The same logic must apply, in all fairness, to Francione’s proposals. Long-term animal rights does not guarantee that imperfect median-term proposals are not “welfarist.”
Francione fails to altogether refute animal “welfarism,” as I have shown in my paper, although granted “welfarism” is contrary to animal rights in many respects, and the latter is desirable as a goal for legislatures in the long-term (it is desirable for laws right now, only it is not realistic). Not only does Francione fail to repudiate animal “welfarism” in theory. He does not divest himself of it in practice, contrary to what he says. He fails to perceive that his own view is substantially “welfarist.” He compares speciesist animal “welfarists” to Jeffrey Dahmer, calling them, in effect, counterproductive, morally impoverished, etc. All of these criticisms must apply to his own view then.
Ironically, there may be a few unexpected logical twists to the situation beyond what I have already shown. We could even justifiably call Francione’s proposals more animal “welfarist” than the vast majority of animal “welfarist” laws or proposals. How does that work? Well, a view is “welfarist” that regulates animal exploitation rather than abolishing it, while notably disregarding animal interests. However, a view is more strongly “welfarist” if the concern for animal “welfare” is more intense, and greater regulation occurs to ensure animal interests—short of animal liberation and still with gross disregard for interests of animals, who are still used for standard purposes. That is how his own proposals can fairly be described. So Francione is more animal “welfarist” than the animal “welfarists” that he so roundly condemns! A second implication is that I have disputed the general applicability of "new welfarism," Francione's term, since mixing animal rights and animal "welfare" goes back to Victorian times at least. However, his own proto-rights is indeed relatively new, and therefore a kind of "new welfarism" if any animal rights view can fairly be described that way (which I have also disputed elsewhere, but Francione begs to differ). He views animal “welfare” as alien and so does not see its structure mirrored in his own logically imperiled dreams for the legislative future.
1. I place animal “welfare” with the quotation marks in place because I do not hold that what is normally referred to as “animal welfare” is really befitting of that label. Rather, what people normally call “animal welfare” is animal illfare, and only if animal rights were respected would true animal welfare be realized. Some may regard the quotation marks as tedious, but I think the constant misrepresentation of “welfare” in our everyday speech is infinitely more trying, and in fact much worse, part of the worst sorts of oppressive horrors. See my "The Rights of Animal Persons," Journal for Critical Animal Studies, pp. 1-6, published also on my website.
2. Note also that I refer to several passages from Francione’s writings in this blog entry which are not cited here. However, I cite “Animal Rights Law” which in turn provides citations for all of the relevant Francione passages.
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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