Laura Coughlin
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The People for the Ethical Treatment of Animals (PETA) filed a lawsuit in 2011 against Seaworld, Inc. for violating the constitutional rights of orca whales, a move that was met with public incredulity and hilarity. Five orcas, which were caught in the wild and forced into captivity to perform tricks or be denied food or placed in solitary confinement, were listed as the plaintiffs.[1] The Thirteenth Amendment to the United States Constitution, PETA’s general counsel argued, prohibits “slavery [or] involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted,” and this language does not specify a certain class of victims.[2] PETA considered keeping sentient and rational beings captive and forcing them to perform to be a form of slavery, and argued that, because the Thirteenth Amendment does not explicitly say that it applies only to humans, forcing orcas into servitude violates the Constitution. Ingrid Newkirk, president and founder of PETA, explained in a press statement that “[orcas at Seaworld] are denied freedom and everything else that is natural and important to them while kept in small concrete tanks and reduced to performing stupid tricks” and that “the orcas are, by definition, slaves.”[3] The case was dismissed on the grounds that because “’slavery’ and ‘involuntary servitude’ are uniquely human activities, as those terms have been historically and contemporaneously applied, there is simply no basis to construe the Thirteenth Amendment as applying to non-humans.”[4] Although this lawsuit was clearly a publicity stunt and not a serious legal claim, it exemplifies the problem that animal rights activists have faced throughout American history—the American legal system distributes protection following the theory of natural rights that was established early in American history, and it is applied only to humans.
Early American conceptions of freedom have been the foundation of nearly every subsequent rights movement in the United States. In the eyes of the nation’s founders, men were born with moral rights that are unquestionable and inalienable. This view was immortalized in the Declaration of Independence, with the pivotal assertions that men “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” and that “to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”[5] The Declaration claims that not only do natural rights exist, but also that protecting those rights is the purpose of government. This idea originated in Enlightenment philosophy, which heavily influenced the nation’s founders. It would later be enshrined in the Bill of Rights, and subsequently in the American people’s idea of what it means to be free.
Most rights movements have co-opted the rhetoric of early American philosophy while animal rights groups have not. Women’s suffragists and abolitionists both used the exact wording of the Declaration of Independence to advance their cause. Suffragettes used the entire document, beginning when Elizabeth Cady Stanton rewrote it as the Declaration of Sentiments at the Seneca Falls Convention and altered the language to include women.[6] The phrase “all men are created equal,” and how Americans ought to interpret that phrase, was an integral part of argumentation against slavery.[7] Abraham Lincoln adopted it, and further cemented its place in American history by including it in his Gettysburg Address.[8] The same words were quoted again by Martin Luther King, Jr. in his “I Have a Dream” speech.[9]
This philosophical foundation has changed very little throughout centuries of social progress. At the time when the Declaration of Independence and Bill of Rights were written, the rights described were given only to white men, and most social movements have not pushed to change the rights Americans value, but rather to change to whom we give those rights. Because these movements kept their conceptions of freedom the same, their rhetoric was centered around equality—if they could make the case that people of all races, or all genders, or all sexual orientations are equal, then it would follow that they were all deserving of the same rights as white men. Convincing people of equality was not easy, but for all of these groups the struggle was similar, the rhetoric was interconnected, and the end goal was the same.
The same approach would not work for the animal rights activists who fought for animal freedom in the twentieth century. In order to co-opt early American rhetoric they would need to prove equality between humans and animals, a burden that cannot be met. Americans measure human equality in terms of rationality and morality, and it is impossible to prove that animals meet the same standards as humans. They are fundamentally different from humans, both in rational capacity and ability to follow moral principles or participate in a social contract. They cannot even make use of some of the natural rights that Americans deem most important, such as the right to vote or to free speech.
Earlier advocates for animals did not need to prove equality, because they only pushed for increased protection out of sympathy. These groups conceded that humans have moral rights and animals do not, and simply tried to protect them from egregious and unnecessary harm. Their rhetoric focused on compassion for animals for the sake of kindness, rather than asserting that animals have any sort of rights claim to being treated well. These activists would later become known as animal welfarists.[10] But, activists in the 1960s took a bolder approach, claiming that protecting animals is not just a matter of kindness, but a moral obligation to recognize and defend rights. As a result of that approach they needed to meet a much higher philosophical burden than their forebears did, and one that was different and more complex than the burdens of other rights movements. They would either need to prove equality so that they could co-opt early American rhetoric, or find a new rights theory that would allow them to develop independent rhetoric of their own.
This high burden made animal rights advocates unable to form a cohesive movement with rhetoric that could overcome the boundary of natural rights theory for most of American history. This changed dramatically with the publication of Animal Liberation, a book by the Australian philosopher Peter Singer. Singer applied the principles of utilitarianism to the treatment of animals, arguing that animal preferences should be weighed just as human preferences are when considering utility. The book was hugely successful, both with critics and with animal rights groups. It became a catalyst for the Animal Liberation movement in America, and it remains the foundational rhetoric for modern activists, so much so that it is frequently referred to as the Bible of the Animal Liberation movement.[11] Singer answered the problem of equality and natural rights with regard to animals in an unconventional way—he argued that we should abandon the concept of a rights framework altogether, because rights are simply “a political shorthand” and are unnecessary when considering ethics.[12] According to his claims, rights are an arbitrary metric for ethical obligations, and making them inalienable often leads to more suffering. A theory that protects an inalienable right to life would prevent governments from ever killing people, even if it would save the lives of thousands of others. Singer’s theory is that humans have an obligation to take whatever actions have the best outcomes overall, even if it means violating the autonomy or “rights” of a smaller group. This would not just make it permissible for governments to kill one person to save many, it would make it obligatory. But even if this argument is logically valid, it is incompatible with American conceptions of freedom and would not work as a rhetorical basis for widespread change in the treatment of animals in the United States.
Singer advocated for what he called “preference utilitarianism.”[13] Utilitarianism is a moral framework that says one ought to act in the way that results in the most overall utility, or the most pleasure and least suffering. The goal is to have the highest possible amount of collective happiness in the world and the least amount of collective pain. He rejected the idea of rights completely. He said that although opponents of animal rights said that “to have rights a being must be autonomous, or must be a member of a community, or must have the ability to respect the rights of others, or possess a sense of justice,” those claims are “irrelevant to the case for Animal Liberation.”[14] By abandoning the concept of rights, he circumvented the logical problem of equality. He conceded that his opponents’ arguments in that regard were true but rejected their rhetoric, and the rhetoric of other movements for freedom, by saying that their arguments for rights were just a convenient rhetorical device. According to his philosophy, using a rights framework and arguing for equality is fundamentally flawed, because even in humans we have “no absolute guarantee that [people’s] capacities and abilities are spread evenly among the different races and between the sexes,” and scientific proof that people are different in either of these capacities could make arguments for equal rights fall apart.[15] He pushed this idea further by showing that we give people with mental disabilities the same protection as others, even though they are not equal to other humans in many ways.[16] Singer argued that in every issue we should seek “the solution with the best consequences for all affected,” which would be the solution that “satisfies the most preferences, weighted in accordance with the strength of the preferences.”[17] Since animals have preferences, we can include them when we weigh all of the pleasure and suffering in the world and try to maximize utility. This would lead to outcomes like the elimination of the meat industry, which is responsible for the suffering and death of billions of animals every year. In Singer’s metric, the preference of these animals not to be slaughtered would outweigh the comparatively weak preference of humans to have meat in their diets.
But, utilitarianism is not compatible with the idea of natural rights, and therefore cannot coexist with most prominent American movements and rhetoric. If rights exist that can never be infringed upon, it would be impossible to properly weigh preferences and take the actions that achieve maximum utility. American rhetoric asserts inalienable rights to “life, liberty, and the pursuit of happiness,” and we have encoded that philosophy in the law.[18] Utilitarianism would require governments to kill one citizen if it led to the best outcome for others, a concept that violates the inalienable right to life and one that Americans cringe away from. But, if Americans keep the concept of natural rights for humans and attempt to apply preference utilitarianism to animals, human interests will always take priority and animals will be no better off. If one group has rights and the other simply has preferences, it is impossible to weigh their interests fairly. For Singer’s framework to work, then, humans would need to abandon their natural rights.
It might be possible, or even preferable, for a hypothetical society to use an approach to freedom that does not include a framework of natural rights, but it is not possible in the United States. It would require Americans to give up on the ideas that their nation was founded upon, ideas that have been ingrained into their collective psyche through nationalism and reverence of the Founding Fathers. Giving up natural rights would also cause the rhetoric of every other social movement to fall apart—if no natural rights exist, all of the arguments made for equality and equal claim to those rights become obsolete. Every decision made by the Supreme Court granting those rights to certain classes of individuals would be void. The conclusion Americans would be forced to draw is that Thomas Jefferson, Abraham Lincoln, Elizabeth Cady Stanton, Martin Luther King, Jr., and nearly every other beacon of hope and equality in the United States were all wrong about what it means to be free.
And yet, Animal Liberation is still the preeminent book used by animal rights activists in the United States. Most groups disagree with Singer on principle and on policy, and yet they encourage people to read Singer’s work and still laud it as the foundational work of their movement. PETA, which is the largest animal rights group in the United States, employs the slogan that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any way.”[19] They oppose all instances of consuming animal byproducts, testing on animals, or using them for any purpose for human pleasure. But, Peter Singer, their champion and forefather, is not even a vegan, and explained in an interview that although he is always vegetarian, he will eat eggs or dairy when it is more convenient for him to do so.[20] Almost every animal rights group believes that it is categorically wrong to consume these products in any circumstance. The Animal Liberation Front, a radical organization that got its name from Singer’s book, uses violent and illegal means to prevent animals from being held captive for any reason, most of all the production of food. And yet, they still consider a man who eats animal products to be their forefather.
Modern animal rights groups’ advocacy is much more consistent with the work of Tom Regan, who was a professor of philosophy at North Carolina State University and who wrote several critically acclaimed books arguing for animal rights in the same period as Singer’s early work. Regan supports the idea of natural rights and advocates giving them to animals, saying that animals possess moral rights because they are “subjects-of-a-life,” which gives them the same inherent value as humans regardless of rational capacities.[21] The theory of inherent value would preclude animals from ever being used as a means to an end, including for human consumption. The philosophy of the modern animal rights movement is also in line with the work of Gary Francione, who is the Distinguished Professor of Law and Nicholas deB. Katzenbach Scholar of Law and Philosophy at Rutgers School of Law, and who began writing about animal rights in the 1990s. Francione argued that animals have one natural right, the right not to be the property of humans, and this framework would preclude eating meat, wearing fur, or experimenting on animals.[22] Singer did not advocate for an absolute ban on any of those things, and would in fact support testing on animals if it ultimately led to better utility. Both Regan’s and Francione’s arguments skirt the problem of equality with regard to natural rights, in that they show that rights are not contingent on rationality, and animals therefore do not need to be equal to have a desert claim. This allows their arguments to coexist with American ideals in a way that Singer’s arguments cannot. Beyond being incompatible with American rhetoric, Singer’s philosophy is also incompatible with the goals of the animal rights movement because he does not advocate for rights for anyone. But, PETA continues to propagate Singer’s book above all others, including Regan’s The Case for Animal Rights (1983), or Francione’s works Animals, Property, and the Law (1995) and Animals as Persons: Essays on the Abolition of Animal Exploitation (2008), all of which are more consistent with PETA’s philosophy. All three authors are acclaimed philosophers, and Francione’s and Regan’s works could be integrated with the American framework of rights.
So why do Animal Rights groups not change the book that they advocate for, given that there are better options? Ingrid Newkirk, the founder of PETA, has said that “Animal Liberation, more than anything else, gave [her] the impetus to start PETA,” and that reading it changed her life.[23] Therein lies the strength of Singer’s work—it is persuasive. It does not matter if his work is consistent with the advocacy of the movement; what matters is that it convinces people to join the movement in the first place. Singer’s arguments are intuitively appealing because on the surface the message of Animal Liberation is that suffering is bad. Readers are drawn in by this simple idea, and are then free to ignore his theories about how it fits into society and how it can be applied to the law. Regan’s The Case for Animal Rights, which has nine sections criticizing various ethical theories and their application to animals, does not have that emotional appeal. The work of authors like Regan and Francione is necessarily more complicated than Singer’s because these authors actually take on the burden of integrating with the current conceptions of rights and freedom that Singer simply ignores. If animal rights groups want to use an introductory piece of literature that is both consistent with their actual advocacy, and that can also be integrated with American ideals, they would need to throw new initiates into the middle of a complicated philosophical dilemma. Instead, they continue to propagate Animal Liberation’s simple yet unattainable idea of how we can free animals. They count on Singer to win people’s hearts, and then once people become interested in the idea of liberating animals, groups like PETA can come in and offer realistic advocacies and practical solutions. Just as he did for Newkirk, what Singer provides is the impetus to care.
Notes
1. United States Court of Appeals for the District of Columbia Circuit, “Seaworld of Florida Brief,” United States Department of Labor (website), accessed April 23, 2014, http://www.dol.gov/sol/media/briefs/seaworld-09-09-2013.htm.
2. “Constitution of the United States,” 1787, in A Documentary History of the United States, eds. Richard D. Heffner and Alexander Heffner (New York: Signet, 2013), 20–42, 34.
3. PETA, “PETA Sues Seaworld for Violating Orcas’ Constitutional Rights,” PETA (website), accessed April 23, 2014, http://www.peta.org/blog/peta-sues-seaworld-violating-orcas-constitutional-rights/.
4. United States Court of Appeals for the District of Columbia Circuit.
5. Thomas Jefferson et al., “The Declaration of Independence,” in American Scripture: Making the Declaration of Independence, ed. Pauline Maier (New York: Alfred A. Knopf, 1997), 236–241, 236.
6. Elizabeth Cady Stanton et al., “The Declaration of Sentiments,” in Woman’s Rights Conventions: Seneca Falls and Rochester (New York: Arno Press, Inc., 1969), 5.
7. Jefferson, “Declaration of Independence,” 236.
8. Abraham Lincoln, “Gettysburg Address,” in A Documentary History of the United States, eds. Richard D. Heffner and Alexander Heffner (New York: Signet, 2013), 210.
9. Martin Luther King, Jr., “I Have a Dream,” in A Documentary History of the United States, eds. Richard D. Heffner and Alexander Heffner (New York: Signet, 2013), 472–476.
10. Tom Regan, The Case for Animal Rights (Berkeley and Los Angeles: University of California Press, 1983), 82
11. Peter Singer, “A Philosophical-Self Portrait,” in The Penguin Dictionary of Philosophy, ed. Thomas Mauer (London: Pearson Education, 1997), 521–522.
12. Peter Singer, Animal Liberation (New York: Random House, Inc, 1990), 8.
13. Singer, Animal Liberation, 7.
14. Singer, Animal Liberation, 8.
15. Ibid, 4.
16. Ibid, 8.
17. Singer, “A Philosophical Self-Portrait,” 521.
18. Jefferson et al., “Declaration of Independence,” 236.
19. PETA, “Our Mission Statement,” PETA (website), accessed April 13, 2014, http://www.peta.org/about-peta/.
20. Dave Gilson, “Chew the Right Thing,” Mother Jones, May 3, 2006, accessed April 23, 2014, http://www.motherjones.com/politics/2006/05/chew-right-thing.
21. Regan, Animal Rights, 243.
22. Gary Francione, Animals, Property, and the Law, (Philadelphia: Temple University Press, 1995).
23. Ingrid Newkirk, “A Message From PETA’s President,” PETA (website), accessed April 10, 2014, http://www.peta.org/about-peta/learn-about-peta/ingrid-newkirk/.
Bibliography
Francione, Gary. Animals, Property, and the Law. Philadelphia: Temple University Press, 1995.
Jefferson, Thomas et al. “The Declaration of Independence.” In American Scripture: Making the Declaration of Independence, edited by Pauline Maier, 236–41. New York: Alfred A. Kopf, 1997.
King, Martin Luther, Jr. “I Have a Dream.” In A Documentary History of the United States, edited by Richard D. Heffner and Alexander Heffner, 472–76. New York: Signet, 2013.
Lincoln, Abraham. “Gettysburg Address.” In A Documentary History of the United States, edited by Richard D. Heffner and Alexander Heffner, 210. New York: Signet, 2013.
Newkirk, Ingrid. “A Message From PETA’s President.” PETA. Accessed April 10, 2014, http://www.peta.org/about-peta/learn-about-peta/ingrid-newkirk/.
PETA. “Our Mission Statement.” Accessed April 13, 2014, http://www.peta.org/about-peta/.
Regan, Tom. The Case for Animal Rights. Berkeley and Los Angeles: University of California Press, 1983.
Singer, Peter. “A Philosophical-Self Portrait.” In The Penguin Dictionary of Philosophy, edited by Thomas Mauer, 521–22. London: Pearson Education, 1997.
Singer, Peter. Animal Liberation. New York: Random House, Inc., 1990.
Stanton, Elizabeth Cady et al. “The Declaration of Sentiments.” In Woman’s Rights Conventions: Seneca Falls and Rochester, 5–8. New York: Arno Press, Inc., 1969.