We have seen that although Francione claims one can reasonably abstain from advocating any laws at this stage in history, he does in his book Rain without Thunder accept legislative proposals that he believes amount to “proto-rights.” I outline Francione’s version of proto-rights in my article, “Animal Rights Law.” It includes, to take his most original example, respecting an entire animal interest (e.g., liberty of movement). Francione seems to advocate not bothering with legal reforms at this stage more recently. It is truly astonishing for any social activist to advocate doing nothing on the legislative front to improve conditions. The purpose of this blog entry is to assess which is more logically compatible with his futilitarian approach: advocating proto-rights or doing nothing on the legislative front? I think do-nothingism best fits his unfitting program, for several reasons:
- He himself seems to advocate doing nothing legislatively, claiming that “vegan education” is the best use of activist time, although I have argued that unique and important gains can be had through legislative reform in my above-mentioned essay. Vegan education converts certain people one at a time and that is invaluable. Laws however may well affect billions
of animals in dramatically suffering-relieving ways at times. That is hardly to be blown off as easily as Francione would like.
- Proto-rights amount to nothing in the end anyway, as it is ludicrous to expect a speciesist society’s government, let alone animal industry, to shoulder the cost of 100% protection of any animal interests. So doing nothing saves the trouble in arriving at nothing anyway on the more activist version of the futilitarian legislative approach.
- Francione, in the above-mentioned book, laments that animal rights is not reflected in the animal rights movement. However, his own proto-rights proposals are not only “welfarist,” as I argued in an earlier entry, but they violate animal rights and embody speciesism. Protecting one animal interest while leaving others neglected violates animal rights and allows speciesist treatment in the interests that are violated or disregarded. Joan Dunayer’s all-or-nothing animal rights legislative approach is wholly more consistent in this respect, or is consistent with advocating animal rights per se. However, it is also futilitarian, as I’ve discussed earlier, since if you expect everything you often get nothing.
- In terms of effectiveness, too, do-nothingism is more consistent with what Francione professes since he insists that so long as animals are property, there cannot be any legal relations between owners and property, and therefore animal interests will not be taken seriously in animal “welfare” legislation. However, if Francione believes this, it is profoundly inconsistent for him to seriously entertain his proto-rights proposals. For they too seem to suppose legal relations between owners and their property.
- Francione objects that “welfarist” laws will create complacency that animals are well-treated, thus hampering further progress in animal law, but the same reasoning applies to his proto-rights.
- Francione argues that so long as animals are property, if they have no market value, then they have no value at all. However, this would be true of animals’ inherent value which he claims “proto-rights” would in part protect.
- Francione notes how it is impossible that a pen should have rights against its owner since it is property; however, the same argument would apply to having proto-rights against the owner.
- Francione claims that “welfarist” laws are negated too because there is a presumption that animal owners look after their animals. If this blocks “welfarist” laws it would do the same with proto-rights. Indeed, if it is perceived that owners look after their animals, only small changes at most would be allowed for, not the sweeping changes that Francione recommends.
- Francione notes that animal “welfare” laws are not adjudicated in the animals' favor, penalties are minor, judgements not enforced, anti-cruelty laws often require the virtual impossibility of proving intent, and many species of animals are exempt from lawful protection. All of these factors, meant to discourage “welfarist” reform attempts, should even more discourage the much more difficult project of proto-rights.
Francione discourages the possible and beneficial to be found in animal rights pragmatism, but offers a “ray of hope” in the form of impossible proto-rights proposals (since again speciesist society structurally cannot fund 100% protection of any animal interests).
If it is structurally impossible for “welfarist” laws to succeed in a society in which animals are regarded as property then it is even more impossible for his proto-rights to succeed since they are far more demanding forms of “welfarist” laws (although Francione would not accept that label; see my blog entry for June 1/08). His negativism about “welfarism” boomerangs back on his positively presenting his proto-rights proposals in ways that he does not acknowledge, or perhaps is not even aware of.
Francione’s futilitarianism is indeed futile. His pessimism about animal “welfarism” applies with redoubled negativity to his proto-rights ideas. And so, after negating, negating, and negating we are left with a void of nothingness, and the vacuity of do-nothingism on the legislative front, an outcome that the animal industries would salivate over. None of this is true of animal rights pragmatism, however. For I refute Francione’s forecasting of futility in “Animal Rights Law,” along with his claim that animal rights is not to be found in the legislative short-term for animal rights pragmatists (whom he derisively labels “new welfarists”). We can find animal rights in the short-term in seed form, and also as a model to approximate as much as possible. Animal rights are seeded in the short-term since kindness culture in the law conduces towards animal rights in the long-term (see "Animal Rights Law"). I do not see how Francione's approach could logically be conceived as conducing to abolition any day sooner—just the opposite! When I think of "the abolitionist approach" that Francione boasts of on his website, I think what he and his followers would most definitively abolish is taking action any time in the foreseeable future on the legislative front. That is a disaster-recipe for animals in so many ways as I have discussed before. We can promote the closest thing to animal rights, which is the maximum respect for all interests, by demanding as much degrees of protection of interests as is possible in the short-term and on to the long-term. Here I speak of the really possible, not just what we can possibly conceive as an idea. Let us leave nothing to the do-nothingists and instead do something far more constructive in the form of substantive suffering-reduction laws. As Edmund Burke penned in another century, in a way that is no less relevant today: "All that is necessary for the triumph of evil is that good men [and women - DS] do nothing."
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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