Why Veganism Matters: The Moral Value of Animals 9780231553209

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Why Veganism Matters

CRITICAL PERSPECTIVES ON ANIMALS

CRITICAL PERSPECTIVES ON ANIMALS: THEORY, CULTURE, SCIENCE, AND LAW Series Editor: Gary L. Francione

The emerging interdisciplinary field of animal studies seeks to shed light on the  nature of animal experience and the moral status of animals in ways that overcome the limitations of traditional approaches. Recent work on animals has been characterized by an increasing recognition of the importance of crossing disciplinary boundaries and exploring the affinities as well as the differences among the approaches of fields such as philosophy, law, sociology, political theory, ethology, and literary studies to questions pertaining to animals. This recognition has brought with it an openness to rethinking the very terms of critical inquiry and the traditional assumptions about human being and its relationship to the animal world. The books published in this series seek to contribute to contemporary reflections on the basic terms and methods of critical inquiry by focusing on fundamental questions arising out of the relationships and confrontations between humans and nonhuman animals, and ultimately to enrich our appreciation of the nature and ethical significance of nonhuman animals by providing a forum for the interdisciplinary exploration of questions and problems that have traditionally been confined within narrowly circumscribed disciplinary boundaries. The Animal Rights Debate: Abolition or Regulation?, Gary L. Francione and Robert Garner Animal Rights Without Liberation: Applied Ethics and Human Obligations, Alasdair Cochrane Experiencing Animal Minds: An Anthology of Animal-Human Encounters, edited by Julie A. Smith and Robert W. Mitchell Animalia Americana: Animal Representations and Biopolitical Subjectivity, Colleen Glenney Boggs Animal Oppression and Human Violence: Domesecration, Capitalism, and Global Conflict, David A. Nibert Animals and the Limits of Postmodernism, Gary Steiner Being Animal: Beasts and Boundaries in Nature Ethics, Anna L. Peterson Flight Ways: Life and Loss at the Edge of Extinction, Thom van Dooren Eat This Book: A Carnivore’s Manifesto, Dominique Lestel Beating Hearts: Abortion and Animal Rights, Sherry F. Colb and Michael C. Dorf The Wake of Crows: Living and Dying in Shared Worlds, Thom van Dooren

Why Veganism Matters THE MORAL VALUE OF ANIMALS

Gary L. Francione

Columbia University Press New York

Columbia University Press Publishers Since 1893 New York Chichester, West Sussex cup.columbia.edu Copyright © 2020 Gary L. Francione All rights reserved Library of Congress Cataloging-in-Publication Data Names: Francione, Gary L. (Gary Lawrence), 1954– author. Title: Why veganism matters : the moral value of animals / Gary L. Francione. Description: New York : Columbia University Press, 2020. | Series: Critical perspectives on animals: theory, culture, science, and law | Includes bibliographical references and index. Identifiers: LCCN 2020020832 (print) | LCCN 2020020833 (ebook) | ISBN 9780231199605 (hardback) | ISBN 9780231199612 (trade paperback) | ISBN 9780231553209 (ebook) Subjects: LCSH: Animal welfare. | Veganism—Moral and ethical aspects. | Animal rights. Classification: LCC HV4708 .F7276 2020 (print) | LCC HV4708 (ebook) | DDC 179/.3—dc23 LC record available at https://lccn.loc.gov/2020020832 LC ebook record available at https://lccn.loc.gov/2020020833

Columbia University Press books are printed on permanent and durable acid-free paper. Printed in the United States of America Cover design: Milenda Nan Ok Lee Cover image: Rein Jannson / © Adobe Stock

Dedicated to all of those who believe that animals matter morally but who are not yet vegans. There are so many of you that, were you to embrace veganism, we could bring about a revolution of the heart and change the world for nonhuman animals.

Contents

Acknowledgments

ix

Introduction

1

1 Our Conventional Wisdom—Animals as Quasi-Persons

18

2 Two Contemporary Approaches to Animal Personhood 46 3 Animals as Persons—a Matter of Sentience Alone

73

4 The Right Not to Be Property

112

5 Veganism as a Moral Imperative

124

Conclusion

166

Notes Reference/Study Guide

175 195

vii

Acknowledgments

MANY THANKS to Wendy Lochner, my editor at Columbia University Press, and to all of her colleagues, including my copyeditor, Robert M. Demke, Lowell Frye, Susan Pensak, and Milenda Nan Ok Lee, who designed the cover. I very much appreciate the comments that I received from David Benatar, Daniel Came, Cora Diamond, Joy Knight, Dave Langlois, Vance Lehmkuhl, and Frances McCormack. I also acknowledge my colleagues in philosophy at the University of Lincoln (UK)—Daniel Came, Mark Hocknull, Olley Pearson, Brian Pitts, and Ralph Weir—and thank them for their support and encouragement of my work. I am beyond grateful to my life partner, Anna Charlton, who has been with me every step of the way over the past almost forty years of my involvement in this issue. We teach classes together on animal ethics and animal law, we are coauthors on a number of things, and we were codirectors of the Animal Rights Law Clinic at Rutgers University, the first such entity of its kind at a U.S. university, where students earned academic credit for working with us on legal cases that involved animal issues. Anna read the manuscript multiple times and her comments were invaluable. The ideas herein are as much hers as mine. ix

ACKNOWLEDGMENTS

Finally, I must acknowledge my nonhuman family—Maya, Duncan, Maggie, Daphne, and Finlay—who sat with me while I wrote this. (George was with us when I started the book but he has since left us and we miss him terribly.) They, and the approximately twenty other rescued canines and several hamsters who have shared our home and who have passed on, are a constant reminder of the moral reality of nonhuman personhood and of the absurdity and arrogance transparent in any claim that sentient nonhumans do not have an interest in continuing to live or that they would lose nothing of value if they were to be killed.

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Introduction

DO WE HAVE a moral obligation to be vegan?

Many people, including those who think that animals matter morally, are mystified as to why some people are vegan and, for moral reasons, do not eat, wear, or otherwise use animals. They think of veganism as an extreme position. They certainly do not  think that they have a moral obligation to become a vegan. In this book, I am going to argue that, if you think that animals matter morally, then you are committed to being a vegan. There is nothing extreme about it. Indeed, I am going to argue that what is extreme—in the sense of being extremely inconsistent—is to believe that animals matter morally and yet not be vegan. Notice that I said, “if you think that animals matter morally, then you are committed to being a vegan.” Let me be crystal clear from the outset that this book is addressed to those who agree that animals matter morally. So if you are of the view that animals have no moral value and that they are not the sorts of beings to whom we can have moral obligations, then you probably should not bother reading further because I am not going to try to convince you otherwise. I am going to argue that, if you 1

INTRODUCTION

are one of the many people who think that animals matter morally, then you are committed to not using animals exclusively as resources. You are morally obligated to be a vegan. Persons, Things, and Animals

The moral universe, as I will describe it, is populated by two entities: persons and things. Persons are entities who matter morally and to whom we can have moral obligations. Persons have moral value. They may be said to have “inherent value,” which means that they have moral value by virtue of the sorts of beings they are. Depending on one’s philosophical views, persons are also entities that can have rights. Things are everything out there that isn’t a person. Things have no value other than what we accord to them; things have “extrinsic value.” Things cannot have moral rights. This is, of course, not to say that we do not regard some things as very valuable. The Mona Lisa is a thing, albeit a very valuable one. But the value of things lies in the fact that we—persons who do matter morally—value them. If we all came to the conclusion that the Mona Lisa were a terrible piece of art and decided to destroy it, we could do so without doing anything immoral to the painting itself. One cannot have moral obligations to a thing. The Mona Lisa cannot have a right to not be destroyed.1 We can have obligations that concern things, but we cannot have obligations that we owe to things. For example, I can have an obligation not to throw a stone at you but that is not an obligation that I owe to the stone; it is an obligation that I owe to you and that only concerns the stone. I may have a moral obligation not to destroy the Mona Lisa because you love that painting. But that is an obligation that I owe to you, and not to the painting. There is a tendency to think that “human” and “person” are synonymous. They aren’t. “Human” is a matter of DNA. “Person” 2

INTRODUCTION

is a matter of morality. When we ask whether someone is human, we are asking a biological question; when we ask whether someone is a person, we are asking whether that being has moral value and is a being to whom we can have moral obligations. Being a person carries distinct advantages. They are entitled, by virtue of their being persons, to certain protections. We feel compelled to justify imposing pain and suffering on them or otherwise harming them. But the most important aspect of personhood is that we take seriously the interest of persons in their continued existence. For example, the philosopher Michael Tooley defines personhood as the characteristics that one needs in order “to have a serious right to life.”2 We don’t use persons as slaves, nonconsenting subjects of biomedical experiments, or forced organ donors. To be a person means that one receives some sort of protection for one’s life. We don’t regard persons exclusively as resources, or otherwise use and kill them to benefit others. If we are going to kill them, we need a very good reason. What makes a person? Ethicists generally associate personhood with certain cognitive or mental characteristics or abilities. These cognitive characteristics include (depending on the theorist) self-awareness, a sense of past and future, rationality, the ability to engage in reciprocal relationships, the ability to think in abstract concepts, and so forth. For example, the bioethicist Joseph Fletcher, in what may be the most cited essay on personhood written in the past one hundred years, proposed fifteen characteristics of personhood: minimal intelligence (an IQ above twenty); selfawareness; self-control; a sense of time; a sense of the future; a sense of the past; the capability to relate to others; concern for others; communication; control of existence; curiosity; change and changeability; a balance of the rational and emotional aspects of existence; idiosyncrasy; and neocortical functioning.3 The philosopher John Locke (1632–1704) was more succinct, describing a person as “a thinking intelligent being, that has reason and 3

INTRODUCTION

reflection, and can consider itself, as itself, the same thinking thing in different times and places.” 4 We can see from this that personhood as a moral concept (as opposed to a legal one)5 focuses on characteristics that we associate with humans, or at least those humans who are able to participate in social institutions and to interact with others in a minimal way. But what about nonhuman animals? Do they have moral value? Are they persons? Or are they just things? The short answer is that they are both, or at least that is what we think is the case. On one hand, our conventional wisdom about animals is very clear: Animals are not just things. They have at least some moral value. Most of us think that it is morally wrong to inflict unnecessary pain and suffering on them and that we have an obligation to treat them humanely. To inflict unnecessary pain on them and to treat them in a cruel manner are wrongs to them. That is, our obligations don’t just concern them, they are owed to them. Our conventional wisdom is considered to be so uncontroversial that it has long been contained in criminal laws that require that we treat animals “humanely” and prohibit inflicting “unnecessary” suffering on them. This view—the animal welfare position—can be traced to a nineteenth-century paradigm shift that supposedly resulted in animals being included as members of the moral and legal community. On the other hand, although we claim to recognize that animals have morally significant interests in not suffering, we do not recognize that they have an interest in their lives. They certainly care about not being slaughtered in a painful way, but that is a function of their having an interest in not suffering as a general matter and not any concern they have about their life per se. They live in a sort of “eternal present” and have no sense of the future. As long as we treat them well and kill them in a relatively painless way, we don’t really harm them because they have 4

INTRODUCTION

no interest in living—no interest in the future—that we can adversely affect. Therefore, we do not accord protection to their lives, which is the hallmark of personhood status. We regard them as commodities for our “humane” use. They have the status of property; they are, quite literally, things that we buy and sell. We own them and use them exclusively as our resources. We kill them for our benefit. We think of nonhuman animals as constituting a third category we may call quasi-persons. They are not persons but, at least according to our conventional thinking, they are not just things. They have a morally significant interest in not suffering, but they do not have a morally significant interest in their lives. The problem is that we cannot have it both ways. I was serious when I said that the moral universe includes only two categories—persons and things. I will argue that quasipersonhood does not work; the property status of animals means that animals are nothing more than things. They have no moral value; they have only the economic value we accord to them. To the extent we protect their interests in not suffering, we do so for the most part only to the extent that it is necessary to use animals in an economically efficient way. For example, we require that large animals who are being slaughtered be stunned before slaughter because stunning reduces costly damage to their carcasses and reduces injuries to workers, which results from terrified animals flailing around. We generally protect animal interests to the extent that we get a benefit—usually a financial one—from doing so. There may be certain instances in which we accord a higher value to animal interests but these instances are not exceptions to what I have said thus far about animals as property—they are illustrations of it. For example, some of us live with pets. Our pets are our property. We may choose to accord them a higher value and treat them as beloved members of our families. But, because they are our property, we have the right as property 5

INTRODUCTION

owners to decide to accord them little or no value and kill them, dump them at a shelter where they will be killed if a new owner is not found, or take them to a veterinarian to be killed. Moreover, because animals are property, we will be unable to apply the moral norm that we claim to accept—that it is wrong to impose unnecessary suffering on animals—in a coherent way. We generally will not ask whether particular uses of animals are necessary. Instead, we will ask whether it is necessary to impose particular sorts of pain and suffering on animals to accomplish those uses, even if those uses are themselves unnecessary. But if a particular animal use is not necessary, then all of the suffering incidental to that use is unnecessary. Despite claiming that we regard animals as having moral value, we allow animals to be used exclusively as resources even in situations where there is no plausible argument that there is any need to use them. In any event, the concept of “humane” treatment is, in several respects, a fantasy. Its primary purpose is to make us feel better about exploiting animals. Animals receive precious little protection under the animal welfare laws and their status as property ensures that welfare standards will be driven primarily by economics and not morality. We are not likely to accord a very high moral value to the interests of animals who are commodities that we buy, sell, use, and kill. Is there a solution? Of course there is, or there would be no  book! If we agree that animals are not things and have moral value, we should not use them exclusively as resources for our benefit—however supposedly “humanely” we may do so. We should recognize that nonhuman animals are persons—beings who have a morally significant interest in their lives. Indeed, there is no good reason not to do so. We recognize that humans who lack some or even many of the characteristics that we associate with normally functioning humans are still persons. That is, personhood theory aside, we actually recognize that there are two sorts of human persons. 6

INTRODUCTION

There are moral agents, or those who possess all of the characteristics of normally functioning human persons, such as rationality, self-awareness, and so forth, and who are thereby accountable for their actions and have obligations to others. Moral agents are persons who can participate fully in our social, political, and legal institutions. They can, for example, vote and make contracts. They are responsible for their criminal actions. And there are moral patients, human persons who do not have all of the characteristics of personhood, or do not have them to the degree that they are possessed by normally functioning human persons, and who are not accountable to others but who are, nevertheless, not things. Moral patients are not normally functioning persons; they cannot participate fully, if at all, in our social, political, or legal institutions. Some moral patients— children—will usually become moral agents at some point in time. Some—those who are cognitively disabled—may be permanent moral patients. Although moral agents may have the characteristics of personhood in varying degrees, they all share in common the possession of these characteristics to a greater or lesser degree. Moral patients, on the other hand, represent a more diverse group as they lack completely some or most characteristics of personhood or have those characteristics in degrees that are insufficient for moral agency. Is there an absolute minimum required to be a moral patient? I believe it uncontroversial to say that we believe that any human who is sentient—that is, is subjectively aware and has conscious experience—has moral value irrespective of their level of cognitive sophistication. We don’t believe that treating any subjectively aware human exclusively as a resource is morally acceptable. We would find using any human as a forced organ donor, as a nonconsenting subject of a biomedical experiment, or as the property of another human to be morally reprehensible. All human moral patients, including those who are merely conscious, are persons. We recognize that all  human 7

INTRODUCTION

persons, whether moral agents or moral patients, have a morally significant interest in their lives. A human with late-stage dementia who lives, as much as a human can, in a sort of eternal present is very different from a normally functioning human. But both are persons. Although we may not—should not—treat them the same in all respects, we recognize that they are equal in one respect—we cannot justify treating either exclusively as a resource. A central idea in this book is that we have overlooked that sentience provides all we need to justify personhood for nonhumans as it does for humans. The conscious experience of sentient beings serves to distinguish all beings with interests from all of the other things in the universe that do not have any interests. All sentient beings are beings concerning whom there is something it is like to be that being. There is something it is like to be a human; there is something it is like to be a giraffe; there is something it is like to be a fish. Sentient beings may be very different from one another if we consider their characteristics beyond sentience but, as a class, they are all the same in that they differ from everything in the universe that has no consciousness. There is nothing it is like to be the Mona Lisa or a coffee cup. Any sentient being has some sort of mind and has interests, and is thereby similar to every other being who has a mind and has interests, and dissimilar from everything that does not have a mind and has no interests. Cognitive characteristics beyond sentience may be relevant for all sorts of reasons, but are irrelevant to the question of whether we should use sentient beings exclusively as our resources. In recent years, there has been a great deal of human thinking about animal thinking. It is not controversial to say that there is a growing consensus that animal minds are much more like human minds than we have previously thought. But it is also the case that there is still a great deal of controversy about the

8

INTRODUCTION

nature of animal minds. There is, however, general agreement that many animals are sentient and have some sort of conscious experience. In Can Animals Be Persons?, the philosopher Mark Rowlands identifies four conditions that nonhuman animals must satisfy to be persons: consciousness, cognition, selfawareness, and other-awareness.6 He regards consciousness as the easiest condition to satisfy and the least controversial. According to the Cambridge Declaration on Consciousness, all mammals and birds are undoubtedly sentient as are cephalopod mollusks such as octopuses.7 There has long been scientifically  sound evidence of the sentience of fish8 and fish sentience  is now widely accepted.9 There are philosophers who find consciousness to present all sorts of puzzles,10 and there are still a very few who deny that animals are conscious,11 but there is no serious controversy about the existence of animal consciousness. That animals are conscious should come as no great surprise. Our conventional wisdom—that animals matter morally and that we have an obligation to treat them “humanely”—is based on their being conscious, sentient beings. We have had no trouble for the past two hundred years or so understanding that anticruelty laws do not apply to rocks or plants or paintings. If animals were not sentient—if they did not have a mind that preferred, desired, or wanted not to experience suffering—we could not be cruel to them. I will argue that it is only our anthropocentrism—the rather arrogant view that we humans are the central or most significant entities in the universe—that stops us from seeing sentient nonhumans as persons who are no different from merely conscious human moral patients. And if nonhuman animals are persons, we can no longer justify using animals—however supposedly “humanely” we do so—as resources for our benefit. We cannot justify using and killing them as our property.

9

INTRODUCTION

A Note About Rights

I am going to be talking here and there about rights. There is nothing mysterious or particularly complicated about what a right is. It is simply a way of protecting interests. To say that interests—whether of humans or nonhumans—should be protected even if failure to protect those interests would have good consequences for others is another way of saying that those interests should be protected by rights. For example, to say that my interest in contributing to the marketplace of ideas by expressing myself should be protected even if others are made unhappy by the content of my speech is another way of saying that I have a right of free speech. The protection of my interest in speaking is generally not determined by the consequences of my speech. I am going to argue that, if animals matter morally, they must have a right not to be treated as things and hence not to be used as property. They must have a right to personhood. This is another way of saying that their status as persons must be protected even if it would benefit humans to ignore that status. If their status as persons is not protected in this way, then it follows that they will risk being treated as things whenever humans think that they will benefit from doing so. If we recognize that animals have a right not to be treated as property, that does not mean that we have an obligation to protect animals from all suffering and death or to intervene to stop a fox from killing a rabbit. It does mean, however, that we have an obligation to protect animals from all suffering that is incidental to their use exclusively as our resources. Please understand that in talking about rights here, I am talking about moral rights—actually one moral right, the right not to be property—and not legal rights. I am not talking about giving animals the right to vote (although the world’s political situation would probably improve greatly if we did) or the right to drive cars and so forth. I am talking about a 10

INTRODUCTION

fundamental change in our moral thinking about animals and our acceptance as a moral matter of the view that animals are not things but persons. If enough of us recognized the moral right of animals to not be used as property, the law would recognize a legal right that would support and enforce this moral right. But the legal right of animals not to be used as property will never be even a possibility until the paradigm shifts and we accept the personhood of nonhuman animals as a moral matter. The United States Constitution prohibits slavery, but this legal protection could never have happened if there had not been a widespread moral recognition that it is very wrong for humans to own other humans. If a significant number of us were to recognize that the moral significance of animals required our recognition of the one moral right of animals not to be things, it would lead to a rejection of using animals for human purposes and the institutionalized exploitation of animals would end. We would no longer use animals exclusively as resources. We would be vegans. Veganism

If nonhumans are persons and have a right not to be used as property, we must abolish our institutionalized exploitation of them—all of which assumes that they are our property. At the present time, social discourse focuses for the most part on treatment—making animal exploitation supposedly more “humane.” The discourse needs to change and to be focused instead on whether we can justify the use of nonhuman animals for food, clothing, entertainment, sport, research, and so on. Let’s begin with a definition of veganism. This is the one that informs the analysis in this book: veganism involves not eating, wearing, or using animals or animal products to the extent practicable with the goal of abolishing all animal use because such use cannot be morally justified. 11

INTRODUCTION

There are at least three things about this definition that require elaboration from the outset. First, although we can talk about a “vegan diet” as one that excludes animal products completely, and although we usually talk about veganism in the context of eating animals because we use and kill so many for this purpose (at least seventy billion land animals and at least one trillion sea animals annually) and eating animals is the primary way we relate to them, veganism is more than a diet. It involves not participating directly in any animal exploitation to the extent practicable. Vegans do not eat, wear, or use animal products. They do not go to circuses, zoos, or rodeos. They do not use products that contain animal ingredients. And veganism is different from vegetarianism. There is no morally coherent distinction between meat and other animal products. They all involve suffering. They all involve death. In any event, being vegan and consuming a plant-based diet are different things. There are certainly very powerful arguments for having a plant-based diet that involve the environment, human rights to food, and human health. I agree with those who maintain that rejecting animal agriculture is the most important thing we can do to mitigate the undeniable disaster of global warming. Eating only plants is something we can all do right now—it involves no technological innovation or regulatory or legislative action—and it would reduce global warming significantly. Without a global movement rejecting animal agriculture, it is unlikely that we will be able to avoid climate catastrophe. A world in which we ate plants and not animal foods is also the most effective way to reduce human starvation and malnutrition. We could feed everyone if we abolished all animal agriculture, and we would actually use less land to grow all the plants we would need because it takes so many pounds of plants to produce one pound of animal products. And the evidence of the health benefits of a plant-based diet is increasingly clear. 12

INTRODUCTION

But this book is not about ecology, the human right to food, or human nutrition. It is about the moral status of nonhuman animals and our obligations to those animals not to eat, wear, or otherwise use them as resources for our benefit. Second, by “practicable,” I mean “feasible” or “possible.” Veganism involves not participating directly in animal exploitation to the extent that it is feasible or possible to not participate. Indirect participation is impossible to avoid. For example, given that we kill so many animals every year, animal by-products are ubiquitous and cheaply available. Therefore, there are animals in road surfaces, plastics, and just about everything else. It is simply not possible to avoid walking on roads or coming into contact with anything plastic. It is, however, completely possible to not eat or wear animals. It is also completely possible to use personal care items that do not contain animal products and to avoid rodeos, circuses, zoos, hunting and fishing, and so forth. “Practicable” does not mean “when convenient” or “unless we really want to consume animal products or otherwise exploit animals.” There are people who call themselves “flexible vegans” who avoid animal products except when they don’t. For example, a “flexible vegan” may consume animal products if they are eating out or at someone else’s home, or dining in Paris or some other exotic place. They may be “vegan before 6 pm” but consume animals after that time. I do not regard “flexible vegans” as being vegan. Indeed, given that no one eats animal foods 100 percent of the time or wears animal clothing 100 percent of the time, everyone can be considered to be a “flexible vegan,” and this in itself renders the expression meaningless. I maintain that a vegan is someone who takes veganism seriously: that is, someone who, whenever faced with a choice, chooses not to participate directly in animal exploitation. Third, as veganism represents a rejection of the unjust use of nonhuman animals and does not depend on whether our 13

INTRODUCTION

treatment of animals is “humane,” it represents a moral imperative. If animals matter morally, we cannot use them exclusively as resources, irrespective of how supposedly “humanely” we treat them. Being vegan is something we have a moral obligation to do. To not be vegan involves treating nonhuman animals unfairly and, therefore, unjustly. There are some who maintain that we do not have an obligation to be vegan as long as we are engaging in some activity that supposedly reduces animal suffering. I disagree with that position. Although less suffering is better than more suffering, I will argue that we cannot justify morally any suffering imposed pursuant to using animals exclusively as resources. Let me emphasize why I think it is more important to talk about the moral issue. We know and have known for a while that there is significant evidence that animal agriculture is harmful to the environment and that eating animal products in anything but small quantities is detrimental to human health. Yet, animal exploitation continues pretty much unabated. During the time that I was writing this book, we became aware of the covid-19 virus, which has now changed our lives in all sorts of ways—and has ended the lives of many. Covid-19, like most emerging diseases, including most pandemics, stems from the transmission of pathogenic agents from nonhumans to humans and, although we may not understand completely the factors that mediate this process, it is clear that the transmission occurs because humans come into contact with nonhumans—and contact is often facilitated by using animals for food. The environmental and health elements may cause us to modify our behavior in that we may eat fewer animal products (at least temporarily). But I have never met anyone who maintained a completely vegan diet for environmental or health reasons alone. And these reasons do not address our other uses of animals. We will not stop using and killing animals for food and other purposes until the paradigm shifts and 14

INTRODUCTION

we recognize that our use of animals—however supposedly “humane”—cannot be morally justified. An Outline of the Book

Chapter 1 discusses how, in the nineteenth century, an ostensible paradigm shift occurred in that we rejected the idea that animals are just things and we embraced the idea that animals have moral value. But we did not accord personhood to them. They were reconceptualized from being things to being quasipersons. This gave rise to the animal welfare position, which characterizes our conventional thinking about animals. I will argue that this approach has failed. Despite our claim that we think animals matter morally, the property status of animals ensures that they remain as things. In chapter  2, I will consider how two important animal ethicists—Peter Singer and Tom Regan—have addressed animal personhood. In chapter 3, I will argue in favor of an approach to personhood that recognizes all sentient, or subjectively aware, beings as persons. They are not equal for all purposes, but they are all equal in that they all have a morally significant interest in not being used exclusively as resources, however supposedly “humanely” they are treated. In chapter 4, I will argue that saying that all subjectively aware beings are persons is another way of saying that they should have a basic moral right not to be used as property. In chapter 5, I will argue that, just as accepting the personhood of all humans requires that we rule out using any humans as chattel slaves, forced organ donors, or forced biomedical subjects, the personhood of nonhumans requires us to rule out using animals as commodities and commits us to recognizing veganism as a moral imperative. Veganism is a necessary consequence of recognizing that animals have moral value. To continue to eat 15

INTRODUCTION

them or products made from them, or to otherwise use them exclusively as resources, is to deny their moral value. I also argue that we cannot justify continuing to cause domesticated animals to be produced for human purposes. What This Book Is and Isn’t

This book is not intended to be an exhaustive examination of all of the issues and debates involved in animal ethics. It is a relatively brief and informal essay.12 Given the extent of animal exploitation—the daily killing of millions of animals—public discussion and engagement are crucial if there is ever going to be any meaningful change. For too long, consideration of the moral status of animals has been either confined to academia or framed by animal charities or groups. Most academic discussion tends to focus on issues in technical ways that only specialists can appreciate and usually ignores the pervasive reality of animal exploitation in favor of inquiries that are tantamount to asking how many animals can dance on the head of a pin. Animal charities/groups avoid critical thinking and rational discourse about the issue because fundraising is better served by street theater or shock, and by characterizing the issue as how we can exploit animals in more “humane” or “compassionate” ways. My goal here is to explore veganism as a moral issue in a way that is simple but not simplistic and that provides a starting point for the public discussion of nonhuman personhood. This was not an easy task. Any complexity inherent in the issues— and there is a fair amount of that—has been greatly exacerbated by self-interest. The desire of humans to eat and otherwise use and kill animals has provided a most powerful incentive to generate some unjustifiable justifications for that conduct, and part of my goal will be to show why those justifications do not work. In any event, it is clear that there is a group of people that cares about animals and regards them as having morally significant 16

INTRODUCTION

interests. It is also clear that there is a group that regards animals as things with no moral value.13 I am assuming that since you’ve gotten this far, you are in the first group, which I believe to be much larger than the second. The goal is to convince you and others similarly situated that, if you agree that animals have moral value, you cannot justify continuing to consume or otherwise use them as commodities, and that veganism is a logical consequence of what you already believe.

17

{1} Our Conventional Wisdom —Animals as Quasi-Persons

IN THE NINETEENTH CENTURY, a revolution in our thinking

about animals ostensibly occurred. We stopped thinking of animals as things that have no moral value. Yet we did not recognize them as persons. They occupied a space between persons and things. We could still use and kill them—they are not persons with a morally significant interest in their lives—but we claimed to recognize that they have morally significant interests in not suffering, and that we have obligations to take seriously those interests. This way of looking at things became pervasive and uncontroversial, and has come to describe our conventional thinking about animals. Most of us think that it is morally acceptable to use nonhuman animals for our purposes, but that we have an obligation to treat them “humanely” and to not inflict “unnecessary” suffering on them. The problem, as we will see, is that this approach did not work. The revolution failed. Animals are still things. Before the Nineteenth Century: Animals as Things

Until the nineteenth century, the dominant Western view was that nonhuman animals were things to whom we could have no 18

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moral or legal obligations. Although we might have a legal obligation that concerned animals—such as an obligation not to injure our neighbor’s cow—this was an obligation that we owed to our neighbor not to damage their property but not an obligation that we owed to the cow. To the limited extent that the cruel treatment of animals was thought to raise a moral issue, it was only because of a concern that humans who abused animals were more likely to treat other humans in a harsh or cruel way. Any obligation that concerned animals was owed to other humans and did not represent a recognition that nonhuman animals had any moral significance. Various reasons were offered to justify the status of animals as things. René Descartes (1596–1650) is interpreted as holding that animals are, as a factual matter, indistinguishable from inanimate objects in that animals are not sentient—they are not beings who are conscious, have subjective and perceptual awareness, or are able to experience pain and suffering on any mental level. As a result, they are not beings who have interests: that is, they do not have preferences, wants, or desires. According to Descartes, animals are, literally, machines that God created and, therefore, are no more conscious than the machines that humans created. If Descartes were correct and nonhumans are not sentient and have no interests, then it would not, of course, make sense to talk about having moral or legal obligations to animals concerning our use or treatment of them, any more than it would to talk about our obligations to the Mona Lisa or to rocks or to any of the other things out there. Descartes was unusual in holding such a view. Most others accepted that animals are sentient and have interests but held that we could treat animals as if they were inanimate objects and ignore their interests because animals are inferior to humans. This inferiority had two forms. The first is what we might regard as “spiritual” inferiority. Western civilization has long held that only humans are created in the image of God and have moral 19

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value, and animals are inferior beings created by God for humans to use. Genesis talks about God giving “dominion” over animals to humans, and this was interpreted to mean that God authorized the domination of nonhumans by humans.1 The second form of inferiority is what we might consider “natural” inferiority, or the view that animals lack some special cognitive characteristic regarded as uniquely human. According to this view, although animals are similar to us in that they are sentient or consciously aware, their minds are otherwise different from, and inferior to, ours as they lack cognitive characteristics possessed by all or most humans, such as rationality, abstract thought, language ability, reflective self-awareness, or the ability to engage in reciprocal moral relations. That is, they lack the characteristics that are associated with personhood. This qualitative difference between humans and animals, it was claimed, allowed us to ignore animal interests and to treat animals as if they were things. For example, Aristotle (384–322 bce) recognized that animals are sentient, but he denied that they possessed rationality or beliefs and he maintained that they existed solely to serve humans. The German philosopher Immanuel Kant (1724–1804) recognized that animals are sentient and can suffer, but he denied that we can have any moral obligations we owe to them because they are neither rational nor self-aware. According to Kant, animals are merely means to human ends; they are “man’s instruments”;2 they exist only for our use and have no value in themselves. Kant argued that if we shoot and kill a faithful and obedient dog because the dog has grown old and is no longer capable of serving us, our act violates no obligation that we owe to the dog. The act is wrong only because of our moral obligation to reward the faithful service of other humans; killing the dog tends to make us less inclined to discharge that obligation to humans: “a person who already displays such cruelty to animals is also no less hardened towards men.”3 According to Kant, “we have no immediate 20

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duties to animals; our duties towards them are indirect duties to humanity.” Animals “have no self-consciousness” and “exist only as means” and not as ends; “man is the end.”4 A hybrid version of this doctrine regarded animals as things combining natural and spiritual inferiority. For example, St.  Thomas Aquinas (1225–74), who was heavily influenced by Aristotle, linked rationality with having a soul and saw nonhumans as both naturally and spiritually inferior. John Locke, whom we met in the introduction, believed that God had given animals to humans for the latter to use; he also maintained that animals are not capable of abstract thought. Indeed, it is accurate to say that, throughout Western history, many people linked natural and spiritual inferiority and maintained that animals lack some supposed uniquely human characteristic, such as rationality or the ability to think abstractly, because they, unlike humans, are not made in the image of God. There were exceptions to this way of thinking. For example, the philosopher Porphyry of Tyre (c. 234–c. 305) rejected the idea that animals were just things, as did some others. But those who rejected the status of animals as things were the exception, and the legal system reflected the dominant thinking that nonhuman animals did not matter morally and were just things. Before the nineteenth century, the law did not for the most part recognize any legal obligations to animals. To the extent that the law provided them any protection, it was usually incidental to protecting human property interests in animals. Animals as Quasi-Persons: A Revolution?

In the nineteenth century, a revolution of sorts occurred as an  attempt to establish the moral significance of nonhuman animals—but without recognizing them as persons. The reformers who instigated this revolution rejected the notion of animals as things. They believed that animals mattered morally and that 21

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their interests should not be ignored. But they did not think that animals were persons. They did not dispute that it was acceptable for humans to use animals exclusively as means to human ends and to kill them. Rather, their concern was to make the point that animals could suffer and, as a result, the treatment of animals raised moral issues and we had a moral obligation to minimize animal suffering. This became known as the animal welfare approach. It did not seek to confer personhood status on animals—indeed, it explicitly declined to do so—but it also rejected the status of animals as things. We can think of this effort as one that sought to create a third category along with persons and things—what I have referred to as quasi-persons.5 The animal welfare position has become our conventional thinking about animals; it describes the position that most people hold today when it comes to animals (and, as we will see later, is embodied in the law). That is, most people think that it is morally acceptable to use and kill animals, but they maintain that, when we do so, we have a moral obligation not to inflict unnecessary suffering on them. Although there were a number of reformers who contributed to formulating the animal welfare position, chief among them was the lawyer and philosopher Jeremy Bentham (1748–1832), who rejected the idea that the supposed cognitive inferiority of animals meant that they had no moral value and we could do with them what we please. Bentham observed that “[o]ther animals, which on account of their interests having been neglected by the insensibility of the ancient jurists, stand degraded into the class of things.”6 He likened the treatment of animals as things to that of chattel slaves and expressed hope for the time “when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny.”7 He noted that the French had already rejected the idea that the skin color of humans should allow them to be enslaved and “abandoned without redress to the caprice of a tormentor,” and that 22

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[i]t may come one day to be recognised, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate? What else is it that should trace the insuperable line? Is it the faculty of reason, or, perhaps, the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month old. But suppose the case were otherwise, what would it avail? the question is not, Can they reason? nor, Can they talk? but, Can they suffer?8

Bentham did not maintain that we should stop using and killing animals. On the contrary, his view was that, although the cognitive differences between humans and nonhumans were irrelevant insofar as animal suffering was concerned, those cognitive differences were very relevant to the issue of killing, and that we could continue to use and kill nonhuman animals. That is, he recognized that, although humans and nonhumans may be different in many respects, they are relevantly similar in that they are both sentient; they are subjectively aware and able to experience pain and pleasure, and sentience is the only characteristic both necessary and sufficient for mattering morally. But the fact that animals were sentient did not mean that it was wrong per se to kill them. Bentham focused on eating animals. He maintained that animals live in the present and are not aware of what they lose when we take their lives. They do not care that we use and kill them; they care only about how we treat them and kill them. If we kill and eat them, “we are the better for it, and they are never the worse. They have none of those long-protracted anticipations of future misery which we have.”9 He also maintained that we actually do animals a favor by killing them, as long as we do so in a relatively painless manner: “The death they suffer in our hands 23

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commonly is, and always may be, a speedier, and by that means a less painful one, than that which would await them in the inevitable course of nature.”10 If, as Bentham maintained, animals do not as a factual matter have an interest in continuing to live, and death is not a harm for them, then our killing of animals would not per se raise a moral problem as long as we took seriously the interests of animals in not suffering when we killed them. There was nothing inherently wrong with animals being property that we owned, used, and killed as long as we accorded protection to their interests in not suffering. It was, according to Bentham and other welfarists, possible to minimize animal pain and suffering so that our pleasure in using them would outweigh their pain. John Stuart Mill (1806– 73) argued that, in balancing human and animal interests, it was important to keep in mind that humans have supposedly superior mental faculties so that they have a higher quality of pleasure and happiness; human interests have a greater weight in any balancing. For example, he maintained that in calculating pleasure and pain as part of any weighing process, we must take into account that humans “have faculties more elevated than the animal appetites,” and he expressed agreement with those ethical views that assign “to the pleasures of the intellect, of the feelings and imagination, and of the moral sentiments, a much higher value as pleasures than to those of mere sensation.”11 According to Mill, “[a] being of higher faculties requires more to make him happy, is capable probably of more acute suffering, and is certainly accessible to it at more points, than one of an inferior type; but in spite of these liabilities, he can never really wish to sink into what he feels to be a lower grade of existence.”12 Animals lack “a sense of dignity, which all human beings possess in one form or other.”13 Moreover, humans have “a more developed intelligence, which gives a wider range to  the whole of their sentiments, whether self-regarding or

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sympathetic.”14 As a result, “[i]t is better to be a human being dissatisfied than a pig satisfied.”15 So although the welfarists rejected the idea that animals are things that have no moral value, and claimed that animals have morally significant interests in not suffering, they maintained for the most part that it was morally acceptable to use animals, at least for food and other conventional uses, because animals are not self-aware and, therefore, animal cognition is generally inferior to human cognition. And in assessing interests, the idea that human interests counted for more was present right from the outset. The welfarists did not challenge the status of animals as property because it was precisely that institution that allowed animals to continue to be used and killed—and that was morally acceptable because animals are not persons. The Animal Welfare Movement

Bentham and his friends really started something. In a relatively short period of time as major shifts in thinking go, the Western view on animals went from the position that animals did not matter at all to the view that animals did matter morally and that, although we could use and kill animals because they lived in an eternal present and were not per se harmed by death, we had moral obligations to animals to not inflict “unnecessary” suffering on them and to treat them in a “humane” fashion. These moral obligations found their way into the law and, in many jurisdictions, there are two sorts of animal welfare laws. There are general laws, referred to as “anticruelty laws,” which require that we treat animals in a “humane” way and do not inflict “unnecessary” suffering on them. There are specific laws that apply these welfare concerns to particular uses of animals, such as vivisection (the use of animals in experiments), or to animals used for food or exhibition. These

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laws are often criminal laws and, although there are few prosecutions, a violation can result in the imposition of a criminal sanction. The criminal sanction is often light, but any criminal sanction is something that has serious consequences in that it results in a social stigma that can adversely affect one’s life. For the most part, only those norms that are widely accepted as a moral matter, such as norms concerning physical harm to humans or property damage, are enshrined in the criminal law. The fact that anticruelty laws are criminal laws tells us that we take animal interests seriously. And if you want further proof, consider the outcry when media report stories about animal cruelty. There is always a strong, widespread, and often sustained reaction. There are some who would say that any obligation that we have not to cause unnecessary suffering to animals does not reflect any recognition that animals have moral value, but only a concern that, if we are cruel to animals, we are likely to be cruel to other humans. This was the position taken by Kant, Aquinas, and others. Most of us would reject that. If someone tortures an animal, we may be concerned that the actor will engage in antisocial behavior toward humans. Many mass murderers tortured and killed nonhumans before going after their human victims. But most of us believe that the torturer has wronged the animal. If someone were to be torturing puppies in secret in their basement, but were otherwise a fine and upstanding person who spent all their time doing charity work for other people, we would still think that the actor violated their moral obligations to the puppies. If you have any doubt here, and are not concerned about others finding you to be peculiar, try asking them whether they think that it is morally acceptable for humans to torture animals as long as those who do are otherwise very kind to other humans. If you ask one hundred people this question, my guess is that you won’t get more than two or three who even hesitate before

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asking why you would ask such a silly question, the answer to which is obvious. The problem is that the animal welfare position promises a lot but delivers very little. The Problem: Animals Are Property

Animals are property. They are economic commodities. They have a market value. They are things that we buy and sell. They are things that we own. They are things we kill. Humans are persons with rights, including property rights. Property rights are important rights. That is the case in most countries. It is particularly true of liberal democracies, which usually embrace the theory of private property of John Locke, who argued that property ownership provides the owner the right to exclude others from using the property. Interestingly, Locke modeled his general theory of private property ownership on the supposedly absolute control that Locke thought God had given us over animals in Genesis. As I will discuss later, this is not to say that property ownership cannot be regulated. There is no such thing as absolute ownership. But property regulation must necessarily take into account the importance of, and respect for, property rights.16 In many ways, animals are no different from any other things that we own. You can buy a car; you can buy a dog. Because you own the car, you get to value it. You must provide sufficient maintenance so that the car can pass a required safety inspection. But beyond that, you can choose to take very good care of your car and maintain it to a high level because you value it, or you can do no more than the bare minimum to pass inspection because you do not value it beyond as a means of transportation. Because you own the dog, you get to value the dog in the same way you do the car. You have to provide minimal food, water, and shelter.

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But beyond that, you can treat your dog as a member of your family, let the dog sleep on your bed, and provide the dog with excellent veterinary care and the highest-quality food. You can also choose to keep the dog outside (as long as there is shelter) and never show the dog a single second of affection. You can provide no veterinary care beyond getting the dog required shots and feed the dog the minimum quantity and quality of food. You can discipline the dog for just about any reason. If you decide that you do not value the dog at all, you can take the dog to a veterinarian to be killed. You can dump the dog at a municipal shelter that will kill the dog if no home is found. In many places, you can kill the dog yourself, as long as you do so “humanely.” But, you say, animals are different from other property in one very important sense: animals are sentient property. They are subjectively aware and they are able to experience pain, suffering, and distress. Because they are sentient, they have interests—unlike inanimate property like the Mona Lisa or your car. They prefer, desire, or want not to suffer pain or other deprivations and they have an interest in satisfying other interests depending on their species. Your observation is absolutely correct. The problem is that it costs money to protect animal interests. Although we may choose to spend that money on our companion animals if we value them, when we are talking about animals we use and kill for food and other purposes, the economic considerations are different. For example, if a farmer buys a pig for $1, and spends another $1 to provide food, housing, and veterinary care for the animal, the farmer must be able to sell that pig for more than $2 if the farmer is going to stay in business.17 If the farmer increases the size of the pig’s living area, that will likely increase the cost to the farmer and the farmer will have to sell the pig for a higher price to make a profit. The farmer has to worry about how price increases will affect demand. The bottom line is that, as a general

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matter, we spend money to protect animal interests only when we derive an economic benefit from doing so. For example, the Humane Slaughter Act in the United States, enacted originally in 1958, requires that larger animals slaughtered for food be stunned and not conscious when they are shackled, hoisted, and taken to the killing floor. This law seeks to protect the interests that animals have at the moment of slaughter but does so primarily because it is economically beneficial for producers and consumers.18 Large animals who are conscious and hanging upside down and thrashing as they are slaughtered will cause injuries to slaughterhouse workers and will incur expensive carcass damage. Therefore, stunning large animals makes good economic sense. But animals have all sorts of important interests throughout their lives that are not protected. For example, many animals are castrated without anesthesia. Although this procedure undoubtedly causes much pain, not providing anesthesia does not detrimentally affect the bottom line in the way that not stunning a large, conscious animal during the slaughtering process can. The Humane Slaughter Act does not apply to smaller animals, including chickens, who account for about 95 percent of the animals slaughtered for food in the United States. The reason for this exclusion is that, given the number of chickens slaughtered, and their relatively smaller size and lesser value, it has not been considered economically efficient to protect the interests of chickens in the same way as the interests of cows and other larger animals. Animal advocacy groups promote more “humane” slaughter of chickens, and they cite recent studies that show that these supposedly more “humane” methods are actually more economically efficient in a variety of ways.19 Animal welfare standards are not really about morality; they are primarily about economics. Animal welfare standards generally do not go beyond, or much beyond, the level of protection required to exploit animals in an

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economically efficient way. The most celebrated proponent and architect of animal welfare as it relates to animals used for food, Temple Grandin, clearly explains the efficiency aspect: Once livestock arrive at packing plants, proper handling procedures are not only important for the animal’s well-being, but can also mean the difference between profits and losses due to meat quality or worker safety. Studies have shown that careful, quiet handling of animals helps to prevent meat quality problems.20 Gentle handling in well-designed facilities will minimize stress levels, improve efficiency and maintain good meat quality. Rough handling or poorly designed equipment is detrimental to both animal welfare and meat quality.21 Stunning an animal correctly will provide better meat quality. Improper electric stunning will cause bloodspots in the meat and bone fractures.22

The property status of animals has two primary and related effects on the idea that we should not inflict “unnecessary” harm on animals and we should treat animals “humanely.” First, because animals are property and are not persons, and receive no protection for their lives, we do not for the most part ask whether animal use is necessary and we do not challenge most of our conventional uses of animals. We assume that use is acceptable because animals are property and use is an exercise of property rights. We ask instead whether the suffering of animals is necessary in order to use them for our customary purposes even if those uses cannot plausibly be characterized as necessary. Second, in assessing the interests in avoiding suffering that animals have, we discount or ignore those interests because those animals are property and the protection of their interests is governed primarily by economic considerations. Let’s consider these points continuing to focus on our numerically most significant use of animals—for food. As I 30

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mentioned in the introduction, we kill at least seventy billion land animals every year and at least a trillion sea animals for food. To put this in perspective: we kill more animals in one year for food alone than the total number of human beings who have ever existed on the Earth. No one maintains that it is necessary to eat animals to be healthy, and an increasing number of mainstream health care professionals and professional organizations tell us that a plant-based diet can provide superior nutrition.23 Animal agriculture is a disaster for the environment because it involves a very inefficient use of natural resources and creates water pollution, soil erosion, and greenhouse gases. 24 The only justification that we have for the pain, suffering, and death that we impose on these animals is that we enjoy eating animal foods, that it is convenient to do so, and that it is just plain habit. Although our use of animals for food involves the largest number of animals, almost none of our uses of animals can be described plausibly as necessary. Indeed, the only use of animals that cannot be dismissed as transparently trivial involves biomedical research that will supposedly result in cures for serious human illnesses (many of which are likely related to our consumption of animal products) and, even in this context, which involves a minuscule number of animals relative to our other uses, there are serious questions about the need to use animals.25 As to the second point, animal welfare laws explicitly discount or ignore animal interests in not suffering by exempting what are considered the “normal” or “customary” practices of institutionalized animal use, or courts interpret pain and suffering imposed pursuant to those practices as “necessary” and “humane.” That is, the law almost always defers to industry to set the standard of “humane” care. This deference is based on the assumption that those who produce animal products—from the breeders to the farmers to the slaughterhouse operators—are 31

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rational actors who will not impose more harm on animals than is required to produce the particular product, just as the rational owner of a car would not take a hammer to their car and dent it for no reason. We assume that whatever level of protection for animal interests that producers are providing is the level that is necessary to use animals for that purpose. The result is that the level of protection for animal interests is, with rare exceptions, set by the industry and is linked to what is required to exploit animals in an economically efficient way. And that allows for a standard of treatment that, if applied to humans, would clearly constitute torture. We raise most animals used for food in horrendous, intensive conditions known as “factory farms.” These animals are mutilated in various ways without pain relief, housed indoors in highly restricted and confined conditions, transported— often long distances—in cramped, filthy containers, and finally slaughtered amid the stench, noise, and squalor of the abattoir. We kill an unfathomable number of fish and other sea animals annually, catching them with hooks and allowing them to suffocate in nets. To call our treatment of animals used for food “humane” is to use that word in a completely meaningless way. These observations about animals used for food are valid with respect to other uses of animals as well. Animals used for clothing, entertainment, sport, and so forth are subjected to terrible suffering and violent deaths. We assume that those involved in these activities impose only that suffering that is necessary to use the animals in an efficient way, and we usually defer to the norms or customs of the particular activity. In addition, because anticruelty laws are usually criminal laws, we want animal users to have notice as to what is prohibited, and that notice is provided if the standard is based on customs of usage. What is generally prohibited is the infliction  of gratuitous  suffering given uses that are, for the most part, wholly unnecessary—that is, gratuitous unnecessary suffering. Think 32

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about that for a second. What is prohibited is unnecessary suffering imposed pursuant to uses that are unnecessary and where all of the suffering imposed is gratuitous. Because animals are property, the animal welfare standard is meaningless. Anticruelty laws apply to a minuscule portion of our animal use. It is often said that animal welfare standards require, in deciding whether animal pain and suffering are justified, that we balance human interests against animal interests. This amounts to a claim that we should balance the interests of humans, who have rights in general, and who have property rights in animals, against the interests of animals, who have no rights and who are the property of humans and exist as “food animals,” or “lab animals,” or “circus animals,” or other similar things. The outcome of any such “balancing” is determined before the process ever starts. Animal welfare laws do little more than require rational behavior on the part of property owners. They generally do not result in serious or even significant economic impacts imposed on institutionalized uses and any reforms are often phased in over a considerable period of time, reflecting that they are just tracking industry changes to make exploitation more efficient. My work offers numerous examples—both historical and contemporary—that demonstrate how the property status of animals limits animal welfare protection both as a matter of the jurisprudence of property rights and because of the economic realities of what property is.26 None of this should come as any surprise. What is surprising is that Bentham failed to appreciate that, if animals remained as property, they would remain “degraded into the class of things.” Bentham was a critic of human slavery on a number of grounds, including that, because slaves were property, the regulation of slavery would be very difficult at best, and that the economic nature of slavery would cause it to become a large and widespread institution.27 There were certainly laws that supposedly protected chattel slaves. Those laws did not make much difference because 33

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the slaves were the property of the slave owners. When there was a conflict between a slave owner and a slave, that conflict had to be resolved in favor of the slave owner just about all of the time or there would be no institution of slavery. As we will see further in chapter  2 when we discuss Bentham’s modern proponent, Peter Singer, Bentham arguably understood that the institution of chattel slavery necessarily resulted in ignoring or undervaluing the interests of enslaved humans. He did not, however, recognize that the institution of animal property would have the same effect with respect to animals and that the status of quasi-person simply could not work to protect animal interests in a meaningful way. We ask questions about our moral obligations to animals when they exist exclusively as resources for human use. In certain respects, this is more peculiar than asking about the moral obligations of slave owners to slaves given that slaves are humans who have been assigned the status of property but only as a contingent matter. The status of domesticated animals as property is inherent in what those animals are. Moreover, in the case of chattel slavery, most people were not slave owners and did not participate directly in chattel slavery. Even if those in free (nonslave) states purchased products made with slave labor, they did not own slaves. In the case of animals, those of us who are not vegan participate directly in institutionalized animal exploitation. That is, there is a difference between eating a vegetable that may have been transported by a horse and eating the horse (although I am not saying that using animals for labor can be morally justified). In any event, the quasi-personhood of animals failed and miserably so. So, on one hand, we claim to embrace the idea that animals matter morally and to reject the idea that animals are things. On the other hand, animals are property. And to be property is to be a thing. The result is that, despite the animal welfare revolution of the nineteenth century, and the emergence of the norm that we are morally obligated to not impose “unnecessary” 34

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suffering on animals and to treat them “humanely,” nothing really has changed. Animals remain trapped in largely the same world they were in before the nineteenth century. If the animal welfare revolution had never happened, the state of affairs would be pretty much as it is today. Animals were things before the supposed revolution; they are things today. Can’t We Just Regulate Better?

I have been criticized by a number of animal ethicists who claim that, although animals are property, property use may be regulated and we just need to do a better job protecting animal interests.28 The short answer: much easier said than done. These critics fail completely to understand how property functions as a legal and economic matter as it concerns animals. For example, they point to regulations that stop property owners from undertaking certain actions with respect to historical buildings, or that stop owners from burning down their house or using a residential house as a concert hall, or that prohibit landowners from selling alcohol to minors as examples of how the law can regulate property use. Remarkably, they ignore not only that I have acknowledged that property use can be and is regulated, but that I have used some of these very same examples to show that the regulation of animal property occurs in a wholly different context from the regulation of other property.29 For the most part, regulations of property occur to protect other human persons, whose interests are protected by respectbased rights. For example, when we regulate what can be done with a historical building, we balance the interests of the owner of the property against the interests of other human persons who have a stake in the heritage represented by the building. To the extent that we restrict what can be done with the historical 35

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building, we do so for the benefit of these other human persons— not for the benefit of the property. We prohibit owners from burning down their houses or using them as concert halls because we are concerned about how these actions will affect other human persons. Putting aside that a restriction on selling alcohol to minors applies not just to landowners but to everyone and is not properly characterized as a property restriction, to the extent that we apply this prohibition to someone who wants to use their property to sell alcohol to minors, we regulate for the benefit of other human persons—parents who do not want their minor children to consume alcohol and the children themselves, whom we think may not yet understand what is in their best interests. Although we do regulate the use of animal property, the level of that regulation is more or less linked to what is economically beneficial for producers and consumers and what will best facilitate the market for animal products—all interests of human persons with rights. We could certainly provide more protection for animal interests, but regulating significantly beyond the level required for the efficient exploitation of animals would as a practical matter require regulating for the benefit of property and this, in effect, would involve the rejection of the status of animals as economic commodities. Just as the rights of slave owners almost always prevailed against the interests of the slaves because the institution of slavery required that the slave lose in any conflict with the slave owner substantially all of the time, in order for the institution of animal property to exist, there must be a strong concept of property rights in animals. Regulation for the benefit of the property undermines the very institution of animal property. When the interests of animals, which are regarded as property, are balanced against the interests of persons who are holders of rights, and, in particular, property rights, the property must lose substantially all of the time or the property is no longer property. 36

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We could attach a higher value to the interests of human persons who are concerned about animals and accord more protection to animal interests. But even if we did that, any improvements are not likely to be significant. Animal welfare charities, representing the interests of those who care about animals and who have contributed to these charities, have spent many billions of dollars on campaigns to improve animal welfare. To date, welfare reforms have been minor at best. The importance of property rights, the legal status of animals as property, and the economics of animal use make regulation that goes significantly beyond the level of efficient exploitation extremely difficult to get. Indeed, animal advocates have increasingly accepted the legal and economic realities, and they now often argue for welfare reform based on the economic inefficiency of particular practices or on claims that certain practices, such as those involved in intensive agriculture, jeopardize human health.30 There is a disincentive for governments, which usually have close relationships with industry, to support or impose regulations that make animal products significantly more expensive to produce as this will affect demand. The problem is exacerbated by the existence of multinational markets where changes in the laws of one country can result in competitive disadvantages harming more regulated producers. Animal welfare reforms do not chip away at the status of animals as property. Rather, they are shaped and limited by that status and their primary effect is to make humans more comfortable about continuing to exploit animals. The most protective animal welfare standards cannot be called “humane.” Consider that Britain is known as a nation of animal lovers. Britain has had a long tradition of concern about animals; the animal welfare standard developed in Britain and Britain claims to have among the highest welfare standards in the world. The political theorist Robert Garner, who is critical of my position 37

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on animals as property, argues that, although animals are chattel property in both the United States and Great Britain, the latter is far more solicitous of animal welfare and this shows that property status can be moderated to accommodate animal interests.31 Although Britain has some better animal welfare standards than does the United States, any differences are minor in the grand scheme of things.32 For example, Garner states that although there have been “gradual erosions of factory farming” in Britain (and some other European countries) relative to the United States, “the fundamentals remain despite much disquiet.”33 He also notes that although the process of slaughter has been regulated to ensure that suffering at the time of death should be minimal, “these regulations are regularly broken. . . . In general, problems occur because animal welfare often takes second place to cost-cutting.”34 Other countries, such as Austria, Switzerland, and New Zealand, also claim to have high welfare standards. To the extent that these countries provide some protections that the United States does not, their animals are still subjected to treatment that, were humans involved, would be regarded as torture, and they are still killed. So there may be a range of welfare protection, but the range is at a low level. Some countries may be willing to pay slightly more for a clear conscience, but none is paying for any level of protection that can be characterized as resulting in “humane” treatment. This is just common sense. If animals are commodities that we buy, sell, and kill, how much protection for their interests will we be willing to purchase—particularly when most of our uses of them cannot even plausibly be described as necessary? If we valued animal interests highly, we would not be using them in the ways that we do in the first place. In any event, “humane” treatment is a fantasy everywhere. A good example of the ineffectiveness of regulation because of the property status of animals is found in the twelve-year-long campaign in the European Union to “abolish” the conventional 38

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battery cage for hens (in which a hen spends her entire life in a space about the size of a standard sheet of paper)—a campaign celebrated by animal advocates and others as compelling proof that property use can be regulated effectively to accommodate welfare concerns. An EU Directive in 1999 required that battery cages for laying hens be replaced with “enriched cages,” barn or “cage-free” systems, or “free-range” systems by 2012. This was a relatively rare instance where regulation actually resulted in adding costs to production so it went beyond regulation limited only by economic efficiency (although the campaign was based not only on animal welfare but also on the concern that conventional battery eggs were unhealthy for consumers). Putting aside that i is not clear that there has been complete compliance with the directive in all of the EU countries, and putting aside that “cage-free” and “free-range” systems still involve a great deal of suffering on the part of the birds, all of whom end up dead (as do all the male chicks who are killed upon hatching), most European producers have chosen to use the “enriched cage” because it involves a smaller increase in cost, much of which can be offset given that higher prices can be charged without significantly impacting demand in light of the relative inelasticity of demand for eggs. Even the most moderate animal welfare organizations acknowledge that the enriched cage does not improve animal welfare in any significant way over the conventional battery cage.35 A twelve-year effort, involving campaigning across Europe and a significant expenditure of labor and financial resources resulted in what, in the grand scheme of things, can hardly be characterized as a significant welfare benefit. And this is just about the best example that those who argue that property status is not an impediment to meaningful animal welfare laws have. Even when welfare reforms go beyond what is necessary for efficient exploitation, they don’t go much beyond.36 There have been efforts to bypass the legal or regulatory system and increase protection for animal interests by directly 39

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demanding higher animal welfare from producers. Some producers and retailers, as a business matter and not as a result of legal regulation, sell meat, dairy, and eggs that are supposedly more “humanely” produced under conditions that are claimed to exceed legal requirements and industry custom, and that supposedly eliminate some of the more brutal aspects of factory farming. They provide products for those who want to accord a higher value to animal interests. This market for supposedly more “humane” products—what I labeled some years ago as the “happy exploitation” market—is supported by the large animal charities that have, in effect, become partners with producers to promote these products to people who purport to care about animals.37 These products are often considerably more expensive than conventional products. Putting aside that there is often little difference between the promised higher-welfare product and the conventional product, and given that there have been a number of exposés of supposedly higher-welfare products that involve conditions that are no different from those at conventional facilities, 38 the most stringent of these standards would, even if implemented faithfully, reduce only some suffering. I will discuss some of these “happy” products in chapter  5. There can be  no doubt that the most “humanely” produced products involve considerable suffering and, of course, death. If all animal agriculture adopted these supposedly higher standards of welfare—and that is not likely to happen—it would still not make animal agriculture something that any reasonable person would call “humane.” As in the case of all animal welfare, the primary goal of the supposedly higher-welfare market is to make the consumer more comfortable about animal use. The Global Animal Partnership, which promotes consumer demand for “happy” animal products, has trademarked that it wants you to “feel good about the meat you eat.”39 But given the atrocious level of conventional 40

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animal welfare, “happy” animal products do not have to be that different before they achieve their goal of making consumers feel better about the matter. The failure of the “happy exploitation” market to raise welfare standards in any significant way is compelling evidence that the property status of animals means that animal welfare standards will always be low. A significant increase in the protection of animal interests would make animal products prohibitively expensive. Those who would be willing to pay that price would likely not be consuming those products in the first place. Would it be possible for us to regulate animal use so that we did not eat any meat but consumed only eggs and milk from animals who were property but were not harmed? No, it is not possible. As I will discuss in chapter 5, there is no way to have an egg or a dairy industry that does not involve the suffering and death of animals. Some theorists see the fact that many human owners love and value their pets as some indication that my views on the property status of animals are mistaken and that we really could change the institution of animal property in meaningful ways. As I discussed earlier, humans own their pets. As property owners, they may accord their pet a high value and treat the animal as a loved and cherished member of their family, or they may accord their pet a low value and provide a miserable life for the animal and even kill their animals if they choose. Their choice of valuation is their right as a property owner and is subject to very few limitations. In criticizing my position on the problems of animals as property, the legal scholar Cass R. Sunstein argues that pet ownership illustrates how property status “is not incompatible, in principle, with a firm commitment to preventing the unnecessary suffering of animals” and recognizing the “intrinsic value” of animals.40 He states that the owners of “pets are unlikely to think that their animals are mere commodities.” 41 As pet owners, they 41

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think “they have certain rights and certain duties—the sorts of rights and duties that make sense for human beings entrusted with the care of living creatures.” 42 He says that “we can go further. The fact of ownership even protects animals in important ways.” 43 You can sue those who harm your animals and that makes it less likely that they will be harmed. Sunstein focuses on the one area in which some humans have benign relationships with animals and maintains that this is consistent with recognizing the moral value of animal property. Humans who love their companion animals do not think of them as “mere commodities” because they do not kill them for food or otherwise use them exclusively as resources. The context of a loving relationship with an animal that one regards as a member of one’s family has no relevance whatsoever to a context in which animals are used and killed as commodities. Moreover, when pets are abused, most of the time they are abused by their owners and not by a third party. We have ample evidence that property status does not protect those animals. On the contrary, property status protects the abusive owners; the law allows the owner to value the interests of their pets and does not intervene, or allow others to intervene, except in extreme situations. Therefore, the fact that some pet owners value their animals highly and feel a sense of obligation to them does not mean that property ownership provides a model for a significant change in the institution of animal property, and particularly as that institution concerns the animals we use and kill. Whether or not some pet owners regard their nonhuman companions as “mere commodities,” the reality is that the humans are the owners of their beloved pets; they have the right as owners to value their pets and rid themselves of them altogether, and thereby end any obligation that they have to provide even minimal care to them. To say that, because some owners will accord a higher value to their animal property, 42

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those animals are not “mere commodities” is simply wrong, and is analogous, as I noted before, to saying that, because some people really like their car and provide care for their car that goes beyond what is necessary to get it through its annual inspection, their car is not a “mere commodity.” In any event, the way some people treat pets is not an exception to the position that, because animals are property, they are “mere commodities”; it is an illustration of the right of property owners to value those commodities.44 To the extent that the claim is that the law could, at least in theory, require that we treat all animals we use in the way that caring owners treat their pets, such a claim ignores that we have not succeeded—indeed, we have failed miserably—in getting everyone to be caring owners of their pets. It is not clear why anyone thinks that we can do better with animals that we use and kill for other purposes, particularly given the economics of property regulation. Moreover, there is a question as to whether it is even accurate to say that the most caring pet owners respect all of the interests of their animals, or only that they respect those interests to the extent that doing so fits more or less within their chosen lifestyles as human property owners. For example, I doubt whether the most loving dog owner who lives in a large city without any sort of garden can be said to respect the fundamental interests of the animal. I say this as someone who lived with rescued dogs in New York City and moved to a more rural place in large part because of a recognition that New York was a terrible place for our dogs to live. If the law were able to require all animal owners to fully respect the interests of their animals, such a state of affairs would result in a situation in which the animals were no longer chattel property (or at the very least not the property of their individual owners). It would be similar to saying not only that the government could regulate the ownership of a historic building and limit renovations or require certain types of renovations, but that it 43

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could prohibit the owner from using the building as a habitation altogether as a matter of heritage protection. That would, in effect, be a taking of property for which compensation could likely be claimed. If the claim is that, at least in theory, we could decide as a cultural matter to value all animals we use for food, clothing, and other purposes in the same way that those of us who love our pets and regard them as members of our families value them, then I agree that, in theory, we could do that. But then we would stop using animals for those purposes. One generally does not think it appropriate to kill and eat family members, or otherwise to treat them exclusively as resources. In any event, it is absurd to think that we will ever treat animals whom we use and kill for food, clothing, sport, and so forth as we do our pets. The revolution that the animal welfare approach supposedly ushered in has failed completely. Despite two centuries of the animal welfare ethic and of our general social acceptance that animals matter morally, animal exploitation continues unabated. We are exploiting more animals in more horrific ways than at any time in human history. And even the most “humanely” treated animals are subjected to what reasonable minds cannot disagree is, plainly put, torture. “Humane” animal treatment is nothing more than a fantasy. Animals remain “abandoned without redress to the caprice of a tormentor”—us. Animals are property and they remain as things. The response of some animal ethicists is to say that we just need to regulate property better. If animals are property, it is folly to think that we will be able to accord their interests in not suffering any significant protection. Moreover, the response that we just need to regulate more and better ignores that any animal suffering that is imposed as part of a use that is unnecessary cannot be justified if we take seriously the idea that it is morally wrong to inflict unnecessary suffering on animals, and assumes 44

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as a general matter that our continued denial of personhood status to animals is justifiable. In the next chapter, we will consider how two leading contemporary animal ethicists have dealt with the status of animals as things. Both of these ethicists propose that some nonhuman animals are persons. Both require more than sentience for nonhuman personhood. That is, like Bentham, they agree that if an animal is merely conscious, the animal does not have a morally significant interest in continuing to live.

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{2} Two Contemporary Approaches to Animal Personhood

IN CHAPTER  1, WE SAW THAT, although our conventional

view is that nonhuman animals have morally significant interests in not suffering, the property status of animals means that those interests are often ignored or undervalued. Some animal ethicists take the position that the solution is to improve animal welfare and make animal treatment more “humane.” But this position fails to appreciate the economic and jurisprudential realities of property. If animals are property, welfare standards will always be low and will be shaped more or less by what level of protection is necessary to exploit animals in an economically efficient way. Animal welfare is about economics, not morality. The problems that I discussed in chapter 1 may lead some who regard animals as having moral value to the conclusion that animal use cannot be morally justified even if animals are not persons with a morally significant interest in their lives. That is, the fact that animal interests in not suffering will always be undervalued or ignored may be sufficient—particularly when we consider that most animal use cannot be plausibly described as necessary—to motivate some to decide that animal use cannot be justified even if animals live in an eternal present and 46

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killing them per se does not harm them. I have met many people over the years who have gone vegan because they understand that the property status of animals means that “humane” treatment is a fantasy but who don’t think, or may not even have considered whether, killing animals (as distinct from making them suffer) is morally wrong. But I have met more people who cling to the idea that, if treatment could really be made to be “humane,” animal use would be morally acceptable. There is unlikely to be any widespread change in our thinking unless those who care about animals and regard them as having moral value recognize that animals are persons: that is, that using them exclusively as resources and killing them, however supposedly “humanely,” cannot be justified. The idea that animals are persons and that killing them is morally wrong has been a matter that several animal ethicists have explored. In this chapter, we will meet two philosophers— Peter Singer and Tom Regan—who are arguably the most influential contributors to the field of animal ethics.1 Although they represent two very different approaches to animal ethics, they both claim (contrary to Bentham) that at least some animals are persons who have morally significant interests in their lives but (like Bentham) both link animal personhood with cognitive characteristics beyond sentience. We will see that reliance on these additional cognitive characteristics creates a considerable number of problems. Peter Singer and Animal Liberation for Some Animals

Peter Singer is the author of Animal Liberation, originally published in 1975. Singer, who is a public intellectual with considerable visibility on the matter of animal ethics, is often identified (with his approval) as the “father of the animal rights movement.” But, like Bentham and Mill, Singer is a utilitarian who rejects moral rights. Utilitarians maintain that morally 47

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right or wrong actions are determined by consequences: that is, they maintain that the right thing to do is that which will generate the most happiness, pleasure, or other identified value for those affected by the action. For much of his work relevant to animal ethics, Singer has been what is called a preference utilitarian. 2 A  preference utilitarian maintains that what is morally right is what will best satisfy the preferences of all affected. A utilitarian approach is distinguished from a rights approach (which we will encounter when we consider Tom Regan’s position later) in that, as we saw in the introduction, the latter holds that what is right or wrong is not a matter of consequences, and that certain interests should be protected irrespective of consequences. John Locke, whom we met in the introduction, maintained that a person is “a thinking intelligent being, that has reason and reflection, and can consider itself, as itself, the same thinking thing in different times and places.”3 Singer follows Locke, claiming that a person is “a rational and self-aware being,” 4 a being with “a continuous mental existence”5 and a “grasp that it has ‘a life’ in the sense that requires an understanding of what it is to exist over a period of time.” 6 He maintains that the lives of persons have a greater worth than the lives of those who are sentient but who are not persons.7 This follows from his preference utilitarianism. Persons have a preference that nonpersons do not have: they have a preference to do things in the future. Persons have a connection with their future selves. Singer thinks that most humans are persons; some humans are not. Some humans are cognitively disabled but still have the attributes of personhood in that they can be said to have some level of rationality and self-awareness, and to be connected with their future selves in that they can think about and plan for the future. But some humans are so cognitively disabled that they lack these attributes and are not persons. If they are sentient but not

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self-aware, they still have interests in not suffering that are morally significant, but they are not persons and their lives have less value than those of a normally functioning human or a human who is intellectually disabled but is still self-aware. That is, Singer thinks that some humans are quasi-persons; they have an interest in not suffering but do not have an interest in continuing to live. He maintains that we can justify treating a disabled human infant as replaceable and killing that infant because the infant is not self-aware. In painlessly killing the infant, we are not taking anything of value from the infant because the infant has no interest in continuing to live.8 Although we might think it wrong to kill the infant if we think that the infant’s life will, on balance, contain more happiness than misery, we might also justifiably conclude that it is permissible or even obligatory to kill the infant if the infant will be replaced by a healthier child who would not otherwise have existed.9 We saw that a defining characteristic of personhood is having a morally significant interest in one’s life. Singer argues that we should recognize a presumption in favor of respecting the lives of persons because “taking the life of a person will normally be worse than taking the life of some other being, because persons are highly future-oriented in their preferences.”10 If we kill a person, we “violate not just one but a wide range of the most central and significant preferences a being can have.”11 A human who has the cognitive characteristics of personhood has preferences, desires, and plans for the future and understands in an abstract way what it is to have a life. When we take the life of such a person, we take something of value. This presumption functions like a right, but it is not a right because, as a utilitarian, Singer rejects moral rights. He adopts a two-level utilitarian analysis.12 On the level of our daily lives—what is called the “intuitive level”—we adopt this presumption and act as if those who are persons had a right to their lives because we won’t be able to make accurate calculations

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of utility on a case-by-case basis (that is, whether the consequences will weigh in favor of protecting the life of a particular person) and rules that we follow in our daily lives will be good general guides to what is morally right. But there may be times when we must think on a “critical level” and recognize that there may be “possible circumstances in which one might maximize utility by secretly killing someone who wants to go on living.”13 We may, for example, be able to save the world from a pandemic by killing and using the blood of an innocent human person who has some sort of unique antibody. So as a general rule, we ought not to treat normal humans exclusively as resources, and given that persons prefer to  continue to live, we should, other things being equal, respect their preference. But the general rule is defeasible if circumstances require that we look further at the consequences of respecting the presumption and determine that treating a human person exclusively as a resource or otherwise disregarding their interest in continuing to live will maximize utility. This differs from a rights approach because a rights theorist would say that if a person’s interest in continuing to live is protected by a right, the consequences of not respecting that right cannot justify its violation or abrogation. What about nonhuman animals? In Singer’s view, animals can be persons and they may benefit from the same rebuttable presumption that they should not be used exclusively as resources or otherwise killed to benefit humans. But it is not clear which animals are persons, or that the level of protection they receive from the presumption is the same as human persons receive. In order to be persons, nonhumans must be self-aware and have a connection with their future selves based on such considerations as whether they can recognize themselves in a mirror or engage in behavior that is deliberately oriented toward the future (as opposed to what Singer views as a matter of instinct). Singer

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has long maintained that nonhuman great apes are self-aware in a way similar to humans, and are part of the “community of equals” with humans.14 This would suggest that we cannot (subject to the general utilitarian rejection of moral rights) use nonhuman great apes exclusively as resources just as we cannot use normally functioning humans. More recently, he has acknowledged that other animals, including elephants, dolphins, and some birds (including magpies, scrub jays, and parrots), are ostensibly self-aware based on the mirror test or the exhibition of future-oriented behavior.15 What about other animals, including the ones we routinely exploit for food? For many years, Singer has maintained that the animals we use for food are most probably not self-aware and connected to future selves. More recently, he has acknowledged that there is evidence that these other animals may be self-aware and they may qualify for personhood but “much depends how far we are prepared to go in extending the benefit of the doubt, where a doubt exists.”16 He maintains that, if killing a person is wrong and we are not sure if a being is a person, then “the best thing to do is to give that being the benefit of the doubt.”17 Although this ostensibly supports not using animals as human resources, Singer maintains that, even if some animals are self-aware, there is a qualitative distinction between normal humans and self-aware nonhumans based on the idea that the content of human experience (or at least that of normally functioning humans) is more morally significant than the content of self-aware nonhumans: “even for those nonhuman animals who are self-aware, and hence meet our definition of ‘person’ it is still true that they are not likely to be nearly as much focused on the future as normal human beings are.”18 He claims that “[i]f cows, pigs, chickens and the other animals we usually eat are self-aware, they are still not self-aware to anything like the extent that humans normally are.”19 He notes that

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the premature death of a cow is not a tragedy in the sense that the death of a human being is “because whether cows live one year or ten, there is nothing that they hope to achieve.”20 Singer notes that even though nonhuman great apes and scrub jays are ostensibly connected to their future selves, “great apes who can use sign language do not talk to us about their plans for the distant future” and scrub jays ostensibly “do not embark on long-term projects that will pay off in the years ahead.”21 That is, he maintains that there can be degrees of personhood and he rejects the idea that personhood—at least with respect to animals—is a categorical quality: Accepting these differences between normal mature humans and nonhuman animals, we could see the wrongness of killing, not as a black and white matter, dependent on whether the being killed is or is not a person, but as a matter of degree, dependent on, among other things, whether the being killed was fully a person or was a near-person or had no self-awareness at all, the extent to which, by our best estimate, the being had futuredirected desires, and how central those desires were to the being’s life.22

Because self-aware nonhumans are not “fully” persons, we can ignore their interests in their lives in certain cases. For example, he states that “[e]ven in the case of animals with some self-awareness, killing for food will not always be wrong,” and he gives the example of hunting when there are overpopulations of deer.23 He also talks about killing animals in situations in which there is poverty, and in traditional hunting/gathering societies. Different lives can have different values based on their levels of self-awareness.24 This reflects the utilitarian position that beings are receptacles that contain value; they do not have value apart from their possession of what is intrinsically valued (pleasure, happiness, preference satisfaction, and the 52

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like). Although Singer recognizes that a preference utilitarian can distinguish between the value of the life of a normal person and that of a cognitively disabled one, he seems to treat all “normal mature humans” as being “fully” persons and as having an interest in life that receives prima facie protection. This is not the case with nonhumans, concerning whom he seems willing to recognize many gradations of self-awareness. So although nonhumans can be persons, it appears as though any presumption in favor of personhood does not provide the same level of protection as it does in the human case and that nonhuman animals who are persons may still be used as resources and killed in at least in some circumstances. What about animals who are not persons (or who might be persons but where we are not willing to give the benefit of the doubt)? He argues that animal suffering, distress, and the like must be taken into account and given proper consideration when we are going to engage in actions that will adversely affect sentient nonhumans but animals who are not self-aware “cannot see themselves as entities with a future” and “do not have any preferences about their own future existence.”25 The fact that animals who are not self-aware may struggle against being killed does not give us a reason not to kill them but only to kill them in a way “that brings about death instantly, without first causing pain or distress.”26 In according consideration to interests, Singer rejects discrimination based on species, or speciesism (a term coined by Richard  D. Ryder but often attributed to Singer).27 He maintains, for instance, that, “other things being equal,” it is worse to kill a chimpanzee than it is to kill a profoundly intellectually disabled human who “is not and never can be a person.”28 It is also speciesist to accord a protectable interest in life to humans who are not persons and not to do so with respect to similar nonhumans who are not persons. Although we might decide that it is wrong to kill an animal who is not self-aware simply because it 53

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ends the pleasurable experiences that the being may have, he says that an animal who is merely conscious “may struggle against a threat to its life” but has no concept of having a life or any connection with a future self, and that “it is not easy to explain why the loss to the animal killed is not, from an impartial point of view, made good by the creation of a new animal who will lead an equally pleasant life.”29 He expresses “some doubts” about this position but does not see how it can be avoided in the absence of a theory that would make killing animals wrong, and he cautions that continuing to think of animals as food will encourage our disrespect and mistreatment of them. He states that this position on the replaceability of animals who are not self-aware would not support consuming factory-farmed animals because they don’t have a pleasant life, but he acknowledges that it could justify continuing to eat free-range animals (of a species incapable of having desires for the future), who have a pleasant existence in a social group suited to their behavioral needs, and are then killed quickly and without pain. I can respect conscientious people who take care to eat only meat that comes from such animals—but I suspect that unless they live on a farm where they can look after their own animals, they will, in practice, be very nearly vegetarian anyway.30

To the extent that Singer gives the benefit of the doubt to the animals we use for food and accords them personhood status, that would seem to militate against using those animals as replaceable resources, but given that such animals would still not be “fully” persons and we can kill them in situations in which there are conflicts with humans, it is not clear. For example, if it is morally acceptable to kill nonhuman persons to respect tradition in hunting/gathering societies, which, particularly today, involve humans making a cultural choice 54

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to continue to kill animals, why can’t other animal uses including, but not limited to, using animals for food, which can be characterized as representing some valued traditional practice, also be acceptable? In many parts of the United States, for example, hunting is valued as a tradition and a part of culture no less than in indigenous societies. And if the preservation of cultural tradition justifies killing, then that is an exception that swallows the rule. In any event, it is clear that nonhuman persons do not benefit from the presumption in favor of protecting their lives to the extent that normal human persons do. Despite recognizing that the male chicks of laying hens are killed after hatching and being sexed, and the hens themselves end up in a slaughterhouse, Singer does “not, on balance, object to free-range egg production,”31 and he maintains that we ought not to worry about whether food we “are offered at a party was made with a factory farm egg.”32 With respect to dairy products, he claims that we should avoid milk and cheese because even dairy products that are not produced under factory-farm conditions involve separating mother and baby and the male babies are killed, but we should “not feel obliged to go to great lengths to avoid all food containing milk products.”33 He acknowledges that “the evidence for pain in fish is as strong as the evidence for pain in other vertebrate animals” and maintains that we should “avoid eating fish” but that “[c]ertainly those who continue to eat fish while refusing to eat other animals have taken a major step away from speciesism.”34 This would suggest that he regards fish as being cognitively inferior to other nonhumans and their suffering as weighing less. Indeed, this would have to be the conclusion unless what Singer is envisaging as “a major step away from speciesism” is consuming the same amount of fish and no more than one ate before and not consuming any other animals so that the total amount of animal foods is reduced. In either case, one is not really taking a step away from speciesism; in both cases, one is continuing to engage in speciesist behavior. 55

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As a general matter, he maintains that we will persuade others more easily if we use “common sense” and do not “strive for the kind of purity that is more appropriate to a religious dietary law than to an ethical and political movement.”35 In Singer’s public advocacy, where he has an arguably greater impact in terms of audience and influencing behavior, he clearly promotes the view that we may use animals as resources.36 He describes himself as a “flexible” vegan who will eat dairy and eggs when traveling or when eating in someone else’s house.37 He characterizes being a conscientious vegan as “fanatical” and cautions against not appearing to be too radical or serious about maintaining a vegan position.38 If a vegan is dining with nonvegans in a restaurant and orders a vegan dish only to have it come with “a bit of grated cheese or something on it,” the vegan should eat the food so that the others do not think that being vegan is too difficult. We don’t want others thinking, “ ‘Oh my god, these vegans . . .’ ”39 His reasoning here would also support eating the meal if it came with “a bit” of meat on it as there is no morally coherent distinction between meat and dairy— something we will consider further in chapter 5. Singer maintains that, if our concern is suffering and not killing, he can “imagine a world in which people mostly eat plant foods, but occasionally treat themselves to the luxury of free range eggs, or possibly even meat from animals who live good lives under conditions natural for their species, and are then humanely killed on the farm.” 40 He maintains that he does not argue for abstaining from animal products because killing animals is wrong, but because of the suffering imposed on animals on factory farms.41 He states that, although he does not eat meat, “if you really were thorough-going in eating only animals that had had good lives, that could be a defensible ethical position.” 42 He coined the term “conscientious omnivore” to describe those who eat only animals who have had reasonably

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pleasant lives and relatively painless deaths. 43 Although Singer is very clear that it is morally wrong to consume factory-farmed animal products, it is apparently morally acceptable to do so if one does so only infrequently: if vegans go out to a “fancy restaurant,” he doesn’t “see anything really wrong” if “they allow themselves the luxury of not being vegan that evening.” 44 He claims that when he does eat animal products while traveling or when visiting with others, he will eat free-range eggs and dairy, mentioning eating ghee (clarified butter) in a curry. But given that he tells us that we ought not to be concerned if we are offered food that contains factory-farmed eggs, and given that he does not say that we should refuse to eat the food with “a bit” of animal ingredients if those ingredients are factory-farm products, it is apparently the case that we need not eschew conventional animal food in situations where we engage in a more critical utilitarian analysis and decide that the consequences weigh in favor of eating conventional animal products. Singer often supports campaigns for more “humane” treatment even when they do little, if anything, to help animals, and where whatever positive effect they may have on animals is far outweighed by the public believing that animal exploitation has been made more morally acceptable. He promoted and celebrated the directive of the European Union that supposedly banned battery cages even though it allows continuing to keep hens in cages that offer no significant welfare benefits over the conventional battery cage that I discussed in chapter  1.45 In 2005, in what marked a crucial turning point in the effort of animal agriculture interests to get animal advocates to support more “humane” animal exploitation, Singer issued a public statement on his own behalf, and on behalf of most of the large animal charities, expressing “appreciation and support” for the “pioneering” efforts of a large U.S. retail grocery chain, Whole Foods Market, in developing “Farm Animal Compassionate

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Standards” of animal exploitation.46 When Singer was asked about his support for these standards and his use of “compassionate” to describe them, he stated: There might be some people who say, “You can’t be compassionate if you end up killing the animals.” I just think that’s wrong. . . . I think as long as the standards really are compassionate ones, that do as much as they can to give the animals decent lives before they’re killed, I don’t have a problem with it.47

Singer’s action here inaugurated what I refer to as the “happy exploitation” movement in that his statement, joined by the large animal charities, had the effect of reinforcing the idea that the animal movement was focused primarily on making exploitation supposedly more “humane” and not on ending animal use. In an article about fish feeling pain, he ends with the admonition that “[w]e need to learn how to capture wild fish humanely.” 48 He maintains that veganism “does solve more of the ethical problems about eating than any other” position but “it is not for everyone” and he does not “want to give the impression that it is the only thing one can do to eat ethically.” If we avoid factory-farmed products (except in those circumstances in which he says that it is acceptable to consume even those products), and we “eat a moderate quantity of organically produced, pasture raised, animal products,” we can still consume animals ethically and we should “enjoy our food.”49 I could offer many more examples of Singer promoting the idea that using animals as resources is defensible if animals have been treated well (whatever that means). He is a vocal supporter of improved animal welfare standards even though these standards provide little, if any, increased protection to animals.

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As a utilitarian, Singer can claim that supposedly more “humane” standards are better than less “humane” standards because the former involve less suffering; but, putting aside that many of the welfare reforms he supports actually do very little, he goes beyond that and affirmatively promotes “humane” exploitation as allowing for morally permissible animal use. That is, he does not say only that less suffering is better than more suffering; he maintains that less suffering may make animal exploitation morally defensible. It is impossible to deny that, when Singer praises companies like Whole Foods for their “compassionate” standards, or commends “conscientious omnivores,” he sends a normative message about animal use. His promotion of supposedly more “humane” exploitation ignores the reality that these standards make humans feel more comfortable about exploiting nonhumans and may even result in increasing animal suffering by encouraging continued consumption. When the “father of the animal rights movement” and the leading animal ethicist in the world promotes supposedly more “humane” exploitation, he most certainly encourages continued animal use. The entire modern animal movement almost without exception promotes “happy exploitation” and “compassionate” use, and many advocates are explicit in linking their support for this to Singer. I have had people in the United States tell me that they feel comfortable eating the meat they buy at Whole Foods because Singer praised the company. In sum, Singer maintains that nonhumans can be persons if they are self-aware and connected to their future selves. There are only a few species that Singer thinks clearly qualify, and even with respect to those animals, Singer does not see them as “fully” persons because they will likely be less self-aware than normal adult humans. Killing them is not a “black and white matter” and may be permissible in situations in which

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utilitarian considerations would not permit the killing of a normally functioning human person. To the extent that we do not give the benefit of the doubt to animals who are not clearly persons, we may use them as replaceable resources if they have had reasonably pleasant lives and relatively painless deaths. Singer rejects the idea of veganism as a moral imperative. Indeed, he regards being a consistent vegan as “fanatical” and believes that, in some circumstances, vegans are obligated to consume animal products. Singer fails to appreciate the problems presented by the status of animals as property. He maintains that we need to accord equal consideration to animal interests—that is, we must treat similar interests similarly without discounting those interests solely on the grounds of species—but he does not explain how, if animals (whether they are persons but not “fully” persons, or quasi-persons without interests in living but with interests in not suffering) are property, equal consideration is even possible. The property status of animals we routinely exploit makes it difficult for us to perceive animals as having similar interests in any situation. As we saw in chapter  1, our institutionalized exploitation of animals almost guarantees that we will undervalue, if not completely ignore, animal interests in any particular situation. Moreover, the property status of animals always acts as a prima facie justification for ignoring any interests that they have. We saw that Bentham discussed chattel slavery and said that “[t]he day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny.”50 It seems as though Bentham believed that humans had a right not to be enslaved and he was thinking that that right might one day be extended to nonhuman animals, at least insofar as they would be protected from suffering at our hands. But Bentham was a utilitarian and

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utilitarians reject moral rights. What did he mean by using “rights” in this context? Singer dismisses Bentham’s use of rights here and claims that he was not really endorsing moral rights but was referring to equality in the sense that “ ‘Each to count for one and none for more than one.’ ”51 But even if Bentham was talking only about equality, he was doing so in a way that arguably involves the concept of a moral right. That is, Bentham may well have recognized that, if some humans are slaves, their interests will never be able to be accorded equal consideration. Their interests will always, because of their status as property, count for less. Slavery involves creating a structural imbalance; slaves will always be at a disadvantage. Slaves can never count for one. If we assume that there must be one right that even a utilitarian must embrace—a right to equal consideration of interests— property status makes equal consideration impossible. I have relied on this interpretation of Bentham as proposing a right to equal consideration as support for my own view, which we will discuss in chapter 4, that, if animals are to matter morally, they must have the one right not to be property, which we accord to all humans. If a being (human or nonhuman) is property, then, whether or not we see equal consideration as a matter of a right or as a defeasible presumption, talking about according equal consideration to the interests of that being is problematic.52 In any event, Bentham erred by not seeing that the property status of animals precluded recognizing their moral value in that, as we saw in chapter 1, he did not appreciate that, if animals are property, their interests in not suffering will necessarily be devalued or ignored. Singer errs here as well. Although he recognizes that thinking of animals as commodities will encourage disrespect of animals on the part of “ordinary human beings,”53 he fails to appreciate that the property status of animals cannot help but result in devaluing or ignoring animal interests, and make equal consideration impossible as a practical matter. Singer can say

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that we should not use nonhumans, whether they be quasipersons or persons, in ways that we would not use similar human quasi-persons or persons. But that is a completely empty expression of egalitarianism. The two will never be seen as similar if one is property. Tom Regan and The Case for Animal Rights for Some Animals

Tom Regan wrote The Case for Animal Rights in 1983. Regan presents a rights theory that is opposed to utilitarian theory. A rights approach maintains that, if an interest is protected by a right, then that protection must hold even if consequential considerations suggest otherwise. For example, if we say that my interest in my life is protected by a right, what we mean is that my interest in my life should be protected even if five other people will benefit from killing me and taking my organs. We will consider rights more in chapter 4. But for now, this example will suffice to illustrate the primary difference between rights and utilitarian approaches. The Case for Animal Rights is dense and complicated but, for our purposes, the only issues that matter are the conditions that Regan proposes for nonhuman personhood and what level of protection those persons receive. The good news here is that, unlike Singer, Regan explicitly promotes animal rights. He maintains that animals who are persons have the same right that human persons do to be treated in a respectful way, and that excludes completely treating those animals exclusively as means to ends or as resources based on considerations of consequences. Human and nonhuman persons—as we will see shortly, Regan calls those who have the right to respectful treatment “subjects of a life”—would be treated equally. Personhood is a categorical quality for Regan. He challenges the idea that nonhuman persons should be the property of human 62

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persons. The bad news is that Regan’s theory is, like Singer’s, unclear as to which animals count as persons. Moreover, Regan’s position on animals who are not persons but who are sentient is problematic. Although Regan is not entirely clear on this point, he can be read as saying that, if a being is not a person, the being may have no direct moral significance. This would arguably make his position with respect to beings who are not persons and who are merely sentient less protective than Singer’s position and reflect the idea that some animals are just things. In any event, however one reads Regan, his position with respect to merely sentient beings is certainly no more protective than is Singer’s, despite Regan being an advocate for animal rights. We will also see that, although a central tenet of Regan’s view is his claim that all persons are equal, he has an exception that threatens to swallow the rule. First, let’s explore who counts as a person for Regan. In The Case for Animal Rights, Regan uses the moral agent/moral patient distinction that was described in the introduction. He maintains that moral agents, who are those normally functioning humans properly held to account for their actions, have inherent value. That is, they have value in their own right based on the sort of beings that they are. Their value does not come from whether or how others value them, or to what extent they have intrinsic value based on their experiences. Their value is not connected to the amount of pleasure or happiness that they have. Moral agents value themselves even if no one else values them. Moral patients—those who are not moral agents because they are the sorts of beings who cannot be held morally responsible (such as young children, some mentally disabled humans, and nonhuman animals)—are sufficiently like moral agents to also have inherent value. Moral agents and moral patients can be harmed in many of the same ways. Moral agents and those moral patients are all subjects of a life. These are beings who 63

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have beliefs and desires; perception, memory, and a sense of the future, including their own future; an emotional life together with feelings of pleasure and pain; preference- and welfareinterests; the ability to initiate action in pursuit of their desires and goals; a psychophysical identity over time; and an individual welfare in the sense that their experiential life fares well or ill for them, logically independently of their utility for others and logically independently of their being the object of anyone else’s interests.54

Being a subject of a life is a sufficient condition for having inherent value and all subjects of a life have inherent value equally. That is, they all have that value that makes morally wrong treating any of them exclusively as a means to an end and killing them. They don’t have more or less inherent value based on the degree to which they have characteristics relevant to the status of being a subject of a life, or other characteristics, such as the ability to do mathematics or write symphonies. There are no degrees of personhood. “One either is a subject of a life . . . or one is not.”55 If one is a subject of a life, one has inherent value in the same way and to the same degree that every other subject of a life has it. Being a subject of a life is not only a condition for having inherent value (because it identifies those who have value in their own right) but is a criterion for what Regan calls “making the attribution of inherent value intelligible and nonarbitrary.”56 That is, those beings who are subjects of a life all have inherent value—they have value in their own right simply because they are the sorts of beings they are. In having this value in their own right, all subjects of a life are relevantly similar and, therefore, it is not arbitrary to accord them all inherent value, which must be equal because their inherent value comes from their being a type of being and not from whatever

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quantity of an intrinsic value, such as happiness or pleasure, that they may have. If we were to use moral patients who are subjects of a life exclusively as resources, we would act arbitrarily because there is no morally relevant difference between moral agents and moral patients—they are both beings with a personal identity over time—that would justify that differential treatment. Subjects of a life may be different but, with respect to their being a type of being who has a personal identity, they are the same. Regan says that with respect to farm animals who are subjects of a life, the notion that they should continue to have the status of legal property “must be challenged.”57 He claimed to be a vegan but, like Singer, he apparently consumed animal products when they were served to him at someone’s home or they were included in something he ordered at a restaurant.58 We can see that Regan’s subject of a life is very much like Singer’s self-aware person, at least in terms of cognitive characteristics. Singer’s person and Regan’s subject of a life are both selfaware, forward-looking beings who have a sense of themselves over time. The difference is that, if a human or nonhuman is the subject of a life, Regan accords them a right to respectful treatment that prohibits their being used exclusively as a means to the end of others, and not just as a presumption against being used as exclusively as a resource, as is the case for Singer. Moreover, all subjects of a life seemingly have equal inherent value, whereas Singer talks about degrees of self-awareness and connection to a future self that translate into different levels of moral value. Who are subjects of a life? The answer for Regan is, as it is for Singer, unclear, but in Regan’s case less so. In The Case for Animal Rights, Regan maintains that the least-controversial cases include humans “aged one year or more, who are not very profoundly mentally retarded or otherwise quite markedly mentally

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impoverished (e.g., permanently comatose)” and “mentally normal mammals of a year or more.”59 So all normally functioning humans, some disabled humans, and some animals are subjects of a life. What about others? What about the severely mentally disabled humans and all mammals of less than a year of age? What about mammals one year or older who are not mentally normal? What about the billions of birds and trillions of fish we kill and consume? Do they not have any inherent value? Are they not moral patients—persons with a morally significant interest in their lives? Regan thinks that one is or is not a subject of a life, but he acknowledges that it may be difficult to know where to draw the line between those who satisfy the criteria that make up the subject-of-a-life concept and those who do not, and, in The Case for Animal Rights, he leaves the door open to including more beings as subjects of a life. Like Singer, he proposes a “benefit-of-the-doubt” approach and maintains that, given what is at stake for animals if we are wrong, our default position should be to assume that animals are subjects of a life unless we can be reasonably sure that they lack the characteristics of a subject of a life.60 In later work published in 2004, he argues that we should include birds and perhaps even fish as subjects of a life because there is evidence that they also have a psychophysical identity over time.61 He ultimately decided against including fish to avoid controversy but maintains that, with respect to birds, the evidence is clear beyond dispute that they qualify as subjects of a life. Although Regan claims that all subjects of a life have equal inherent value and seems to reject Singer’s position on degrees of personhood, Regan claims that humans have greater opportunities for satisfaction of their interests than do nonhumans and this portends that his concept of equal inherent value is a

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philosophically inert idea. He discusses the following hypothetical: Imagine that there are four normal adult human beings and a dog on a lifeboat. The boat will support only four and one has to be thrown overboard. Regan’s view is that the dog ought to be thrown out. Why? Because, according to Regan, although death is a harm for the dog, it is a qualitatively lesser harm than it is for any of the humans because the dog has fewer opportunities for satisfaction of interests than do any of the humans. He makes it clear that numbers do not matter here: “[a] million dogs ought to be cast overboard if that is necessary to save the four normal humans.” 62 This is based on Regan’s view that when we must decide whether to override the rights of the few or the many, if the harm faced by the few would make them worse off than it would make any of the many, we are obligated to override the rights of the many.63 It may be the case that humans, given the diversity of their interests, have more or more diverse opportunities for satisfaction of their interests than do dogs. My partner and I live with five rescued dogs and it appears to me that they get enormous satisfaction out of just about everything. I do not have access to dog minds so I do not really know. I do, however, know with some certainty that  some humans have more interests than other humans and they have greater opportunities for satisfaction than do humans who have fewer interests. It really cannot be doubted that some beings have more, or more diverse, interests than others and may have more opportunities for satisfaction. But it appears that Regan is making a different point—that the content of human experience is more meaningful and significant than the content of nonhuman experience. To the extent that that is what he is saying, his position comes close to Singer’s view that we can distinguish between human and nonhuman persons based on degrees of self-awareness, and that nonhumans will lose in conflicts with normal humans.

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If death is a qualitatively greater harm to humans than to nonhumans, then it is not, as Regan maintains, arbitrary to distinguish between human subjects of a life and animals because the former are qualitatively different from the latter in a morally relevant way in that the content of human experience is more significant than the content of nonhuman experience. This would justify denying equal inherent value to animals who were otherwise subjects of a life because there is a nonarbitrary way of distinguishing humans from nonhumans. Nonhumans are relevantly different from humans in that human minds have morally more significant content; they have more opportunities for satisfaction. Why does this difference not justify differential treatment of human subjects of a life from nonhuman subjects of a life?64 Regan would say that this analysis only becomes relevant in extraordinary situations of conflict. But if this analysis is applicable in that—or any—context, then it would seem to undercut his claims about equal inherent value as a general matter. Regan would most certainly rule out frivolous uses of animals as not involving any real conflicts. But if human and nonhuman subjects of a life are different because the former have more opportunities for satisfaction of interests, we would be obligated to choose humans over nonhumans in any situation in which there was a genuine conflict. Regan would not approve of vivisection as an institutionalized animal use because that would involve using animals exclusively as resources.65 But it is difficult to see how he could, in a situation in which killing an animal (or a million animals) was, in fact, necessary (and there was no doubt about causal efficacy) to save a human life, maintain that it was anything else but morally obligatory to kill the animal if the animal was not part of an institutionalized use—e.g., a nondomesticated animal. And conceding this in conflict situations threatens to undermine Regan’s position of equal inherent value generally. Indeed, his 68

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position aligns with Singer’s in that animal persons may be used and killed in certain situations, although those situations will arguably be fewer with Regan because conflict situations must exclude any institutionalized exploitation from the outset. Finally, at least some of what Regan says appears to leave all of the animals who are not subjects of a life in—literally—a noperson’s land. On one hand, his theory arguably attempts to elevate all animals to subject-of-a-life status in that he says that we should err in favor of concluding that animals have a psychophysical sense of identity over time when we don’t know to the contrary. Although Singer endorses a similar benefit- of-the- doubt approach, Regan seems more willing at least in some places to endorse a default assumption that animals who engage in complex behavior are subjects of a life unless there is evidence to the contrary. On the other hand, Regan very clearly links a right to respectful treatment with a level of cognitive sophistication that goes beyond sentience and includes preference autonomy, beliefs, and a sense of identity over time. What about animals who are sentient but do not have, as far as we can tell, these additional characteristics? His theory does not address whether those outside the class of subjects of a life might still have inherent value (and, therefore, have a morally significant interest in life). He claims that the subject-of-a-life condition is sufficient for having inherent value; it may not be necessary. But the necessity of the criterion is “well beyond the scope of ” The Case for Animal Rights.66 Although he leaves the issue open, he is less than optimistic about finding a basis for inherent value other than being the subject of a life. He says that it is “radically unclear how the attribution of inherent value to these individuals can be made intelligible and nonarbitrary.”67 He thinks that it is difficult to attribute inherent value to merely conscious beings as it is in the case of “nonconscious natural 69

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objects or collections of such objects,” 68 such as a tree or a forest: “It may be that animals, for example—which, though conscious and sentient (i.e., capable of experiencing pleasure and pain), lack the ability to remember, to act purposively, or to have desires or form beliefs—can only properly be viewed as receptacles of what has intrinsic value, lacking any value in their own right.” 69 That is, Regan is concerned that merely sentient beings might not have inherent value because they do not have an experiential welfare or psychophysical identity. A sentient being may be said to have an experiential welfare if that being can (at a moment in time) experience suffering but Regan understands experiential welfare that is shared by all subjects of a life as personal well-being over time. Animals who are not subjects of a life might be conscious but there would be nothing that connected one conscious experience to another and it would be arbitrary to accord inherent value to such beings because they lack the sort of experiential welfare that is possessed by all subjects of a life. He does say that, even if animals who are not subjects of a life are things, using and killing such animals encourage social and cultural attitudes that do result in violating the rights of nonhumans who are subjects of a life.70 He acknowledges that this argument is similar to the position of Immanuel Kant, who, we saw in chapter 1, argued that, even though animals were things that had no inherent value, by being cruel to animals, we made it more likely that we would engage in acting immorally toward other humans who did have inherent value. We can have obligations that concern animals, but we cannot have obligations that we owe to animals. So if an animal is not a subject of a life, then the theory he presents in The Case for Animal Rights cannot accommodate them and they may very well be nothing more than things. It is “radically unclear” as to how they could have rights—and, in 70

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particular, a right to respectful treatment that would rule out using them exclusively as resources. Singer maintains that sentience is all that is needed for quasipersonhood but that full personhood requires that a being be rational and self-aware; he emphasizes that persons are forwardlooking. He maintains that only a few species clearly qualify for personhood. It is, however, not clear as to what level of protection for their lives such nonhumans would have relative to rational and self-aware humans given that Singer differentiates personhood based on levels of self-awareness, and sees nonhuman persons as not “fully” persons relative to normal human persons. If one does not give the other species of animals (including the ones we routinely exploit for food) the benefit of the doubt on personhood, it is permissible to use them as resources and kill them as long as they have a reasonably pleasant life and a relatively painless death. We have moral obligations to animals to accord equal consideration to their interests, but, like Bentham, Singer does not appear to appreciate the effect that property status has on valuing animal interests and that property status makes equal consideration extraordinarily difficult, if not impossible. Regan maintains that all subjects of a life have rights to respectful treatment and we cannot use these nonhuman persons exclusively as resources irrespective of consequences, but he appears to see a qualitative difference between human subjects of a life and nonhuman ones, and this arguably threatens the equality that Regan claims for all subjects of a life, at least in certain situations of conflict. He claims that it is difficult to draw the line between those animals who are subjects of a life and those who are not, and he counsels that we err in favor of personhood but if animals are not subjects of a life, he finds it difficult to understand how merely conscious beings can have inherent value (and a morally significant interest in their lives). 71

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With respect to those animals, we would have obligations that concern them but not obligations that we owe to them. They risk remaining as things. So neither of the leading theorists on animal ethics accepts that sentience alone is sufficient for nonhuman personhood. In the next chapter, we will consider a theory of personhood based on sentience alone.

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{3} Animals as Persons—a Matter of Sentience Alone

IN CHAPTER  2, we met two leading animal ethicists—Peter Singer and Tom Regan. They both maintain that some animals can be persons but they link personhood with characteristics beyond sentience. Singer rejects outright the idea that animals who are merely sentient can be persons. Regan is “radically unclear” as to how merely sentient animals can be subjects of a life.1 In this chapter, I will argue that only sentience is necessary for nonhuman personhood and that, because animals are persons, we harm animals by killing them no matter how supposedly “humanely” we treat and kill them.

Personhood Based on the “Similar-Minds” Approach

The general approach to nonhuman personhood, exemplified clearly by Regan and Singer but adopted pretty much across the board by animal ethicists, is to link animal personhood with cognitive characteristics beyond sentience that are similar to those of humans. I call this the “similar-minds” approach to animal ethics—if animals have certain humanlike cognitive characteristics, they are persons; if they do not, they are not persons.2 73

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Some philosophers simply deny that animals have these cognitive characteristics and, therefore, conclude that they cannot be persons. Others, like Singer and Regan—and, indeed, most other philosophers who have examined the matter—argue that at least some nonhuman animals arguably have the required humanlike cognitive characteristics. Whether we deny that animals have minds similar to those of humans and cannot be persons, or affirm that some animals do have similar minds and may be persons, this approach is problematic for at least four reasons. First, any talk about animal minds ignores a simple fact: we have no idea what animal minds are like. Given that humans are the only animals known to use symbolic communication, there can be no serious doubt that there are significant differences between human and nonhuman minds. The theory of evolution tells us that mental characteristics exist on a continuum and that many animals have similar cognitive and emotional attributes. Common sense tells us that we cannot explain much of the behavior we see animals exhibit without attributing to them some sorts of mental states that are more or less equivalent to human mental states. If, like me, you live with nonhuman animals, you probably cannot make any sense of the behavior of your nonhuman companions without attributing to them mental states that are more or less like ours. But, precisely because we really do not know what it is like to think without the concepts that are part of the sort of language we use, we do not really know what their minds are like. As the philosopher Ludwig Wittgenstein noted: “If a lion could talk, we could not understand him.”3 Our minds are different. The philosopher Thomas Nagel asked, “what is it like to be a bat?”4 He concluded that the consciousness of a bat is inaccessible to us. He argued that to be conscious “at all” means that “there is something that it is like to be that organism—something it is like for the organism” and that this is the “subjective character 74

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of experience.”5 Although the primary point that Nagel was trying to make is that consciousness is fundamentally phenomenological and we cannot explain consciousness in some objective way in terms of physical processes (a problem that continues to engage some philosophers), the relevant point for present purposes is that every conscious being has their own experience of what it is to be themselves and the nature of bat minds, which use echolocation to negotiate their environment, may very well make it impossible for us to understand their subjectivity and vice versa. We have a hard enough time trying to understand the nature of human consciousness. The fact that we seem to think that whether animals can recognize themselves in a mirror resolves the matter of whether they are self-aware for the purpose of not treating them as things is illustrative of the inability of human minds to think clearly about animal minds. There is no doubt whatsoever that most of the animals we routinely exploit are subjectively aware. As I mentioned in the introduction, it is accepted generally that animals are conscious. Indeed, in discussing the Cambridge Declaration on Consciousness, the philosopher Mark Rowlands states that “[t]he case for phenomenal consciousness in animals is . . . straightforward” in that “the neural correlates of phenomenal consciousness in humans are also found in” nonhumans including all mammals, birds, and “many other species.” 6 There is no longer any serious doubt about fish having conscious experience. No sensible person thinks that animals are machines, as Descartes posited. We have had anticruelty laws for two centuries now precisely because we have long accepted as uncontroversial that many animals are sentient. That is, we do not question the fact of animal consciousness. But as we do not understand the nature of animal consciousness, we cannot know with certainty much more than that they are sentient and have conscious, subjective experience. We can know that there 75

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is something that it is like to be a bat, or a dog, or a horse, or a chicken. We just cannot know what it is. Second, even if we think that we can understand the nature of nonhuman consciousness, given that there will be, at best, great uncertainty about the matter, it is highly unlikely that there will ever be any agreement about whether animals have the required characteristic. Singer and Regan present an example of the problem of agreement. They have similar criteria for personhood—Singer’s concept of self-awareness is similar to Regan’s concept of a psychophysical identity over time. They both seem to think that they have clear insight into the nature animal consciousness. The problem is, however, that their insights differ. Regan thinks that mammals one year of age or more and birds present clear cases of beings with a psychophysical identity over time. For Singer, the clear cases are nonhuman great apes, dolphins, elephants, and, perhaps, some birds (magpies, scrub jays, and parrots). Singer thinks that, at least as of this time, the evidence about animal minds leaves it a matter of some doubt as to whether most of the animals we routinely exploit are self-aware, or that, at least, he does not view the matter as settled enough to require that he reject altogether his view about animals as replaceable resources. Regan thinks that it is not controversial to include chickens as subjects of a life. Although Singer thinks that there is some evidence that chickens may be self-aware, he has been decidedly negative about chicken personhood, at least in some of his public advocacy.7 Third, even if we had some idea as to what was going on in animal minds, and even if we reached agreement that we identified the existence of a particular cognitive state in animals that approximated a human cognitive state beyond consciousness, that’s the best we could do. There would still be disagreement about whether the animal version of the characteristic is close enough to the human version and whether and how that proximity affects the level of protection that is accorded. For example, 76

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Singer maintains that self-aware nonhumans “are not likely to be nearly as much focused on the future as normal human beings are.”8 Animal persons can only approximate human persons. This ostensibly provides the basis for making qualitative distinctions between at least normally functioning humans and self-aware nonhumans and these distinctions can have normative consequences. For example, he says that killing self-aware nonhumans may be acceptable in some situations in which it would not be acceptable to kill normal, self-aware humans.9 For Regan, a nonhuman animal may be the subject of a life, and he claims that all subjects of a life are equal, but in situations involving a compelling conflict (and where the animals are not in any way participants in institutionalized exploitation), we are obligated to favor normal humans over nonhumans because the former supposedly have more opportunities for satisfaction of their interests, which is another way of saying that the content of human minds is more morally significant than the content of animal minds. So, again, we see an illustration of the idea that humans and nonhumans can both be subjects of a life but nonhuman subjects of a life can only approximate human ones. In any event, the very nature of the inquiry as to whether animals have whatever special characteristic is required in a way or to a degree that is going to matter guarantees that we are not going to reach agreement as there can be no standard that would determine whether the characteristic was present sufficiently. There is a great deal of evidence that many species, including the ones we routinely exploit, have minds that are similar to ours, and we simply ignore that evidence because the real standard is not that they must have minds similar to ours, but that they must have minds that are identical. That is a game that animals will always lose. For example, we have known for decades that nonhuman great apes appear to have humanlike cognition in several respects, including self-awareness that we think is probably very similar to human self-awareness. But we still exploit them. 77

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They’re close—it is difficult to identify any other animals who could be closer—but they are not close enough. Indeed, Singer, who welcomed nonhuman great apes into the “community of equals,”10 has acknowledged that even the apes who use sign language do not tell us anything about distant plans and this shows that normal humans are more focused on the future than nonhumans are.11 I am not saying that Singer would regard any differences as justifying treating nonhuman great apes in the harmful ways that we do. But the point is that the similar-minds approach invites differential treatment precisely because nonhuman persons can only approximate human persons. This should come as no surprise. We have justified discrimination against minorities and women in exactly the same way, claiming that they are not close enough to white men. Those who set the standard not surprisingly find it difficult to see that others can meet it. What is difficult where only humans are involved becomes impossible when nonhumans are added to the mix. And the discussion of Singer and Regan should make one thing very clear: trying to rely on characteristics beyond sentience is a prescription for a significant level of confusion and arbitrariness. Fourth, all theories that require that animals have cognitive characteristics beyond sentience in order to be persons beg one very important question—they assume that these characteristics are essential for personhood. Why does a sentient being have to have humanlike self-awareness or be the subject of a life to have a morally significant interest in life? Why isn’t sentience enough? It is this question—and not questions concerning the nature of animal consciousness—that is primary. In the following sections, I will argue that to equate being sentient with the state of being in an eternal present without any connection to a future self fails to recognize what sentience is, and that sentience alone is sufficient for nonhuman personhood. Cognitive characteristics beyond sentience are certainly relevant for some 78

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purposes but they are completely irrelevant to whether nonhumans are persons and whether we may treat them exclusively as resources. We recognize this where humans are concerned. There is no reason to deny it where sentient nonhumans are concerned. The Meaning of Sentience

In response to the claim that sentience is sufficient for personhood and that humanlike cognitive characteristics are irrelevant, Singer and Regan would (echoing Bentham) disagree and argue that sentience alone cannot be sufficient for personhood because, if a being is merely sentient, then, as a matter of fact, that being cannot have an interest in life. Regan maintains that, if animals are only conscious and sentient, and are not subjects of a life, “[i]t may be that” they “can only properly be viewed as receptacles of what has intrinsic value, lacking any value in their own right,” and he is “radically unclear” as to how such animals could be subjects of a life.12 Singer is more definite: “beings that cannot see themselves as entities with a future do not have any preferences about their own future existence.”13 Killing a cow painlessly does not raise a problem because there is nothing the cow wants to achieve. Therefore, it makes no more sense to talk about protecting an interest in continuing to live than it would to talk about protecting the interest of animals in being provided with instruction in calculus. As an empirical matter, animals have no interest in learning calculus. Animals cannot be harmed by failing to provide them with classes on calculus. The situation is exactly the same where animals who are not self-aware or subjects of a life are concerned. Animals who are not persons live in an eternal present of unconnected perceptions. They do not have an interest in their lives. There is no one there who has any sort of connection with a future self. They are harmed if one takes actions that cause them pain, but they are not harmed any further if that pain is inflicted in the course of causing death. 79

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This is just wrong. Why would we think that any sentient being lives an eternal present of unconnected perceptions with no connection to a future self? Although such a claim will surely confound anyone who has ever lived with or interacted with an animal, it is not a matter of discovering the empirical facts about the nature of animal minds. It is simply a matter of understanding the concepts that we are using. The late Donald Griffin, a celebrated biologist and cognitive ethologist, observed that it is arbitrary to deny that animals are self-aware when it is clearly true that any being with conscious experience is necessarily self-aware to the extent that the being perceives other animals that the perceiver must be aware on some level are not the perceiver. He gives the example of an animal watching another animal run. The observing animal is aware of not being the animal who is running.14 At least in these remarks, Griffin is not making empirical claims about animal cognition; rather, he is saying that to have phenomenal consciousness is to be self-aware on some level. Why is it necessary that, in order to be self-aware in some relevant way, animals have to be self-aware in the way that humans are self-aware? Why does self-awareness have to depend on things such as whether there is recognition in a mirror? The answer that Singer and Regan would probably give is that being self-aware in the way that Griffin describes is not sufficient. In order to have the sort of self-awareness or psychophysical identity over time necessary for personhood, the awareness of the being must have a connection to the future self of the being. Both Singer and Regan place heavy emphasis on this notion. It makes no sense to talk about a sentient being who does not have an interest in living and who is not connected to a future self. These are necessary characteristics of sentience. Brigid Brophy, a controversial British novelist and social critic from the 1960s and 1970s who is credited with being (even if not widely recognized as) a significant influence on the modern animal rights movement, offers a crucial insight here.15 In an essay published in 1971, she argued 80

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that, “[a]s a live sentient being, I am bound to the pursuit of happiness and to its concomitant, the shunning of pain. I can’t escape even if I want to.”16 But that does not tell the whole story about sentience. She argued further that sentience is an “instrument” that keeps us alive: “From the moment that I am alive, my being alive consists of an organisation towards staying alive.”17 She applied this framework to all sentient beings and maintained (borrowing an expression—“I have to live”—from Voltaire) that “[a] living organism is, in being alive and being organised, a tacit assertion of ‘Il faut que je vive.’ ” This is all a simple matter of fact: “Any living individual thing cannot help but tend to continue to live.”18 She maintained that “my right to stay alive is something I claim independently of my right to shun pain.”19 Brophy is undoubtedly right. Sentience is a means to an end, that of continued existence; sentience is what ensures continued survival and the continuation of conscious states. To say that a being who is sentient does not have an interest in continued existence is like saying that a being who has eyes does not have an interest in continuing to see. Seeing is what an eye does; perpetuating consciousness so that life continues is what subjective awareness does. When we kill a sentient being, we take something of value from the being, however that being values it. We take that which the sentience of the being was designed to protect—the continuation of conscious states. To put this in Nagel’s terminology, if a being is conscious at all, what it is like to be that being involves an organization toward staying alive. This does not require that we understand the nature of any animal’s consciousness; it just requires that we understand what consciousness is. There is a distinction between having an interest in continuing to live in the sense of understanding in the way typically functioning humans understand what it is to exist over a period of time, and having continued life be in one’s interest whether one can or does think in some abstract way about what it is to exist over a period of time. Any sentient being has an interest in 81

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continuing to live in this second sense. Brophy does not require that we take any position on the subjective character of a being’s existence. Her observation is one that does not address the matter of the nature of another’s mind. Rather, she is recognizing that, as a conceptual matter, continued existence must be in the interest of a sentient being simply because the being is sentient. It is not necessary that the content of the being’s mind include abstract ideas about the future. Even if we can say in a very general way that some sentient beings lose more than others when they die, every sentient being loses something—the entirety of that being’s consciousness—and we simply cannot say that death is per se not a harm. It is quite remarkable that we can fail to recognize that it is in the interest of a sentient being to continue to live even if the being does not have thoughts about life as some abstract matter and does not think about their life in some autobiographical manner. Recall Singer’s observation of the fact that “[a]n animal may struggle against a threat to its life, even if it cannot grasp that it has ‘a life’ in the sense that requires an understanding of what it is to exist over a period of time.”20 If the animal does not “grasp that it has ‘a life’ ” in this sense, the animal is not a person and does not have a protectable interest in life. That is, animals can, in the words of the Welsh poet Dylan Thomas, “rage against the dying of the light” as humans can.21 But for Singer, unless animals can think in abstract ways about their lives in terms of having conscious plans about the future as typically functioning humans can—unless the animals being slaughtered in the abattoir can think that they would have been doing particular other things if they weren’t where they are—the animal’s struggle against a threat to life is insufficient for us  to say that the animal is self-aware and has an interest in continuing to live. I find it difficult to believe that anyone really believes this. According to Singer and Regan, a merely sentient being does not have “an understanding of what it is to exist over a period of 82

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time,” a “continuous mental existence,” or a “psychophysical identity over time,” and, therefore, has no connection with a future self. But this ignores that every sentient being— every being with phenomenal consciousness—is connected with their future if only the next second of that future. They have an interest in getting to that next second. They are necessarily oriented toward the future at least to that extent. It is their existence as a sentient being and their connection to the next second of their conscious experience that provide a sense of personal identity. Every sentient being prefers to continue living because every sentient being is, by virtue of being sentient, connected to the future if only in the next second of consciousness. Having an interest in life includes at least wanting to get to the next second of consciousness, and that is a concomitant of consciousness itself. That is true of every sentient being; the fact that they are not or may not be connected to the future in the way that normally functioning adult humans are is irrelevant. Just as a human with a profound form of amnesia may have no memory of the past and no ability to plan for the future is self-aware in each second, so is every sentient being. All sentient beings have preferences for the future even if the future is just the next second. All sentient beings “rage against the dying of the light” whether or not they think in a humanlike way about the matter and want the light to continue into the future because they have plans to visit Paris at Christmas. Connection to a future self for purposes of personhood does not come into existence at some necessarily arbitrary time beyond connection to the next second of conscious experience. Any claim that sentient beings do not have a protectable interest in living because it is only the immediate future they can contemplate (if that is even true) simply begs the question and does not answer it. In the next section, we will see that this analysis is not even controversial where humans are concerned. 83

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Human Personhood

For the purpose of deciding whether it is morally justifiable to use a human as a resource to benefit others, we don’t ask whether the human thinks about having a life in any way that is similar to the way that normally functioning humans do. We assume that humans have a protectable interest in life if it is in their interest to live, which we assume is the case for any human who has conscious experience. We do not require that humans have minds that are similar to the minds of normally functioning humans to be a person; any human who has a mind is regarded as a person. We recognize that for a human to be conscious at all is to be a being concerning whom there is something it is like to be that human. We recognize that there is no nonarbitrary way to determine when the connection to a future self is sufficient for human personhood. There are many humans who live in an eternal present relative to normally functioning humans. For example, there are many humans who have late-stage dementia. They are not just forgetful or very forgetful; they have no memory of the past, have no idea about who they once were, do not recognize people with whom they have been very close, and have no ability to plan for the future. They have no psychophysical sense of identity other than the one that they have in that very second. Their experiential welfare is limited to the present. They are connected to a future self but only in the sense of wanting to get to the next second of conscious experience. Their cognitive abilities are very restricted. Singer and Regan would claim that such humans are not persons. There may be reasons to treat such humans as if they were persons, but they are not, strictly speaking, persons, and their lives have no greater value than do the lives of similarly situated nonhumans who are not persons. And nonhumans who are persons have greater moral value than humans who are severely cognitively disabled and who are not persons. 84

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Regan and Singer may take such a position but it is absolutely clear that most of the rest of us would not. Indeed, most of us would be horrified at the suggestion that humans who are severely cognitively disabled but still sentient and have conscious experience are not persons and do not have a morally protectable interest in life. That is, we do not treat humans who are sentient and who have conscious experience as if they were  persons. We treat them as persons. We do not require that humans be faint, ghostly versions of normally functioning humans and have minds similar to normally functioning humans in order to be persons. We just require that they have a mind. If they have no conscious experience, they cannot have any experiential welfare and we cannot harm them. So a mind is necessary for personhood and for having morally significant interests at all. But it is also sufficient for personhood. Although some philosophers argue that severely cognitively disabled humans are not persons and that we treat them as if they were persons for reasons other than their being persons— such as that not treating them as if they are persons will cause those who love them to be unhappy, or cause the rest of us to be alarmed that we may be so treated—these arguments are, literally, academic. We might discuss them in a philosophy class but most of us would reject outright any proposal that that we treat vulnerable humans exclusively as resources and we would see the primary reason for this rejection being that humans are persons. We would never use criteria such as having a continuous mental existence or a psychophysical identity over time because such characteristics are inherently arbitrary and will necessarily produce unprincipled results. Let’s focus on an example that will demonstrate exactly why we link human personhood with consciousness alone. Assume we have two adult humans: Mary and Fred. Mary is a brilliant mathematician. Fred has late-stage dementia and, as much as any human can, lives in an eternal present. But Fred 85

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is otherwise a very happy fellow who enjoys every second of his life although he does not anticipate his life beyond the next second. He is self-aware in the way that Griffin’s animal who is watching another animal run is, or the human with profound amnesia is. We clearly are not under any obligation to treat Mary and Fred equally in all respects; indeed, it would be morally wrong to do so. If the local university needs a math teacher, it would be a wrong to Mary (and to Fred and to the students) to appoint Fred. But let us assume that the matter is different. We are not looking for a math teacher but for someone to be used and killed in a biomedical experiment or as an organ donor. Do we not use Fred for this purpose only because we are concerned about how Fred’s family would feel or because we otherwise do not have a moral obligation owed directly to Fred but only one that concerns Fred? What if Fred has no family? Do we then not use Fred only because, if we do so, it might make others, including those who are persons, anxious and fear that they, too, might be used in this way if they experience dementia, or that their relatives or friends who are like Fred might be so used? What if we could be assured that no one else would find out about what we are doing with Fred? What if this is a truly one-off thing and we are using Fred because he is the only human on the planet with a particular physical characteristic that is relevant for the experiment or the organ use? Do we then not use Fred because it is difficult to draw lines between persons and nonpersons? Fred is so severely cognitively impaired that although he is sentient and has conscious experience, he is clearly on the nonperson side of the line as Singer, Regan, or any other philosopher who links personhood with cognitive characteristics beyond sentience would draw it. That is, he is very much living in an eternal present and his only connection with his future self is the consciousness he has from second to second. Is painlessly killing him and taking his organs a morally acceptable thing to do? 86

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Singer would say that although we may treat Fred as a person, he really isn’t. We may decide to protect Fred’s life because, for example, we think that his life involves more pleasure than pain, or for some other reason, but he is not a person. If we kill him, we might harm him in the sense of depriving him of more pleasurable experiences he may have in the future but we are not depriving him of his “future” because he doesn’t have one. He lacks a continuous mental existence. If we did use him as a resource, we would be doing no harm per se to him by killing him. Regan would say that he is “radically unclear” as to why Singer wouldn’t be right here because Fred clearly has no psychophysical identity over time or preference autonomy. I submit that we do not use Fred because he is a person. There is something it is like to be Fred. We regard that something as having moral value. We have an obligation that we owe to Fred to not use him as a resource for others. Fred is not a moral agent, but he is a moral patient. He may not have moral obligations to anyone, but we have moral obligations to him. We regard Fred as having a moral right not to be used in this way. We regard Fred as having this right not in some metaphorical way; we regard him as actually holding a moral right not to be exploited in this way because we regard his interest in not being used exclusively as a resource as an interest that cannot be ignored just because it would benefit us to do so. That would be to treat Fred as a thing. We recognize that he has interests that are morally significant. We do not protect those interests because Fred is the sort of being (human) who would have interests in his life and be a real person if only he were a normally functioning human. We protect those interests because continuing to live is in Fred’s interest even if he cannot think about all of the things he wants to do in his life. Fred is a real person. He is not a thing. And he is not a quasi-person whose life we can take as long as we kill him “humanely.” We assume that Fred values his life, however he values it, and we cannot second guess him; we assume that he has an interest in continuing to live even 87

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if he is unable to muster any sophisticated thinking about the matter. To describe it as Brophy does: [D]ifferent though you and I may be in the mode of our being and our sentiency, and even perhaps in the intensity of them, our rights to them have to be taken as equal. My life may seem to you a poor and limited little affair, the loss of which you would reckon no great loss. That doesn’t, however, entitle you to make me lose it. Since we are separate entities, the question is not what my life is worth to you, but what it is worth to me, whose only life it is and who am the only person who lead it.22

We do not require that Fred have a psychophysical sense of self that goes beyond the next second to some further point that would necessarily have to be arbitrarily chosen. Fred is connected to his future self in that, because he is sentient, he has an interest in getting to the next second of his consciousness. Fred is self-aware in that he is aware of himself from second to second. Fred is not the same sort of person that Mary is; there is, indeed, a qualitative difference between the two. But they are both persons in that both have morally significant interests in not being used exclusively as resources. We may also protect Fred’s interest in his life because we are concerned about his family or about public perception. But the primary reason that we protect him is that he is a person. He is not a thing. And his personhood means that we do not just protect his interest in not suffering; we protect his interest in his life. Once we require that Fred have additional cognitive characteristics in order to be said to be a person, we necessarily end up in an arbitrary mess. Is there a morally relevant difference between Fred, who has no memory and no ability to plan for the future beyond the next second of his consciousness, and Sara, who has late-stage dementia but who is able to remember one minute in the past and plan for one minute into the future? Is Sara a person 88

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and Fred not a person? If the answer is that Fred is not a person but Sara is, then personhood apparently comes into being somewhere in the fifty-nine seconds between Fred’s one second and Sara’s one minute. And when is that? After two seconds? Ten seconds? Forty-three seconds? If the answer is that neither are persons and that the connection with a future self requires a greater connection than one minute, then when, exactly, is the connection with a future self sufficient for personhood? Three hours? Twelve hours? One day? Three days? Singer argues that a sentient being who is not a person may have a preference for a pleasant experience to continue or for an unpleasant experience to stop “but it will not have any preferences for the long-term future, and the desires it has do not survive periods of sleep or temporary unconsciousness.”23 Such a being “has no conception of its own future existence after a period of sleep.”24 Regan similarly emphasizes the importance of having a psychophysical identity over time. This would suggest that neither Fred nor Sara is a person because the preferences of neither will survive temporary unconsciousness. And this shows how arbitrary such an approach is. A person must not only have future desires, but those future desires must be able to survive temporary unconsciousness. And how many episodes of temporary unconsciousness must be survived? Two? Twenty-two? Thirty-seven? Singer maintains that “painless killing and administering an anesthetic seem to be equivalent. Killing does not thwart any more desires than putting the being to sleep. The being will be able to continue to satisfy its preferences after it awakes, but from the being’s subjective perspective it is as if a new being, with new preferences, came into existence.”25 So if a human with early dementia has preferences for the long-term future, but those preferences fade away after some period of time, is that human a person or not? If not, when did that human cease to be a  person? How many of one’s long-term preferences must be 89

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permanent? Are persons only those whose long-term future preferences are all permanently there? And, even if we decide that we can live with the hopeless arbitrariness of this framework and we concede that a connection to a future self has to go beyond the next second of consciousness, why does that connection need to survive temporary unconsciousness? If I have those future preferences now  and will have them for the next several hours, and will then have a new set of preferences for some period of hours, and then another set, and so on, why isn’t that enough to claim that I am  the sort of being who has an interest in continuing to live? The fact that these are the questions suggested by such an approach to personhood demonstrates why no one outside of academia would ever take it seriously as a basis for analyzing or deciding matters of personhood where vulnerable humans are involved. Considering the length of time of future-oriented thinking required misses the point that Brophy so elegantly and simply made: a sentient being is the sort of being whose life is a tacit assertion of “Il faut que je vive,” or “I must live.” It is by virtue of being subjectively aware—however that manifests itself—that one prefers to get to the next second of consciousness and is connected to one’s future self in that next second. This is not to say that cognitive states that go beyond sentience do not give rise to other interests—they clearly do. We do not have to treat Fred, Mary, and Sara equally in all respects; indeed, it would be absurd to suggest that equal treatment in all respects is required. But we do see ourselves obligated to treat them equally in one respect: we do not think it is morally acceptable to treat any of them exclusively as resources; we see ourselves as obligated not to kill them even if it would benefit us to do so. It may be the case that a human is not a person if that human is so severely brain-damaged as to have no cognitive ability and no hope of ever emerging from a comatose state. For example, an anencephalic child is born with a forebrain and cerebrum and is 90

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usually deaf, blind, unconscious, and unable to feel pain. Such a being may have no interests because that being may have no sort of mind that prefers, desires, or wants anything. Therefore, that child would have no interests to treat as morally significant. There may be other instances, such as those involving a human who was previously normally functioning but, for whatever reason, falls into an irreversible coma. For various reasons, including the sensibilities of loved ones, or because we are not completely certain whether the coma is irreversible or whether there is conscious experience or merely nociception without any subjective experience, we may treat the human as if they were a person. But we would not see the permanently comatose person as someone to whom we had direct moral obligations but something concerning which we had obligations. We may err in favor of continuing to treat that human as a person because there is much at stake if we are wrong, but if we were certain that the human did, in fact, have no interests, we would not say that such a human was a person unless our notion of personhood is connected with a religious idea involving the possession of a soul (and nothing else), as is the central concern in discussions about early-term abortion.26 We do not think it is wrong to kill an infant who is not anencephalic but who is disabled (Singer uses the example of an infant born with hemophilia) because we expect the infant’s life to have more happiness than misery; we think it is wrong as a primary matter because the infant has a life that matters to the infant. The infant is not equal (in terms of being the same) as a normally functioning adult in the same way that a mentally disabled adult is not the same as a normally functioning adult. But they are equal—they are all the same—in that they are conscious and by virtue of being conscious they are connected to the next second of their lives. And we cannot decide that any of them is inferior to any of the others for the purpose of treating any of them exclusively as a resource without making distinctions that are unprincipled and arbitrary. Even if we can say that the 91

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adult loses more by death than the infant does, the infant loses something and we cannot judge that loss to be inconsequential without starting down a necessarily arbitrary and unprincipled path. To the extent that we ever consider it morally acceptable on any level to kill a human person (outside of the context of selfdefense), we do so only when we think death is in that person’s interest. But even then, the importance of personhood results in our imposing limits. Given that we have not yet widely recognized assisted suicide (although public opinion is increasingly in favor of it), it seems that we are so concerned about protecting the life of persons that we are not willing to accede to a person’s informed decision to end their life even when they are in terrible pain. In any situation where a human chooses to end their life, they are saying that they no longer wish to be a person; they no longer wish to continue their conscious experience; they no longer see the necessity of continuing to live that is a concomitant of being conscious; they no longer wish to be connected to their future selves if only for the next second. Our failure to respect the decision of a human person to end their life out of a concern for personhood should cause us some concern as to whether our respect for personhood in this context comes at the cost of disrespect of the person. In cases where the human who is ill or in pain is, for whatever reason, unable to communicate their wishes, we are extremely reluctant to recognize that the inextricable link between sentience and an interest in continuing to live has been broken and the human no longer has a morally significant interest in living. In sum, where humans are concerned, the question we ask to determine whether there is a morally significant interest in life (and, hence, personhood) is not whether the human can think about having a life in the way that normally functioning humans do, but rather whether it is in the interest of a human to live. And we assume that it is, as long as the human has conscious 92

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experience because, like Brophy, we understand that to say, “X is sentient” is to say, “X has both an interest in not suffering and a separate but concomitant interest in continuing to live.” We regard all human persons as being equal in one respect: they all deserve not to be used exclusively as a resource. They all value their lives, however they do so, even if that is only valuing the next second of their consciousness. Singer argues that, although it is difficult, we can compare the value of lives and have a basis for rejecting the idea that all lives are equal based on the idea that every being values their life. He offers the following thought experiment. We should imagine that, like Puck in Shakespeare’s A Midsummer Night’s Dream, we have the ability to turn ourselves into animals and that when we are in an animal state, we have all and only the mental experiences of the animal. When we are in a human state, we have all and only the experiences of a human. Imagine further that we can enter into a third state in which we are able to remember exactly what each of the other mental states was like. If we are offered the choice to live life as the animal or the human under the best possible circumstances, and we would choose one over the other, then that arguably allows us to make sense of value that goes beyond the point of view of the particular being: If it is true that we can make sense of the choice between existence as a horse and existence as a human, then—whichever way the choice would go—we can make sense of the idea that the life of one kind of animal possesses greater value than the life of another; and if this is so, then the claim that the life of every being has equal value is on very weak ground. We cannot defend this claim by saying that every being’s life is all-important for it, because we have now accepted a comparison that takes a more objective— or at least intersubjective— stance and thus goes beyond the value of the life of a being considered solely from the point of view of that being.27 93

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In other words, if I, a human, would choose to be a human and not a horse, then we have a possible basis for saying that a human life has more value than a nonhuman life. And we don’t have to limit this thought experiment to a choice of human vs. nonhuman. As Singer points out, when Mill compared dissatisfied humans with satisfied pigs, he also said that it was better to be Socrates dissatisfied than a fool (understood at that time to be someone who was cognitively disabled) satisfied. For example, if I could have all and only the mental experiences of a human who is mentally disabled and a normal human, and would choose to be a normal human rather than a mentally disabled human, that provides a possible basis for claiming that being a normal human is more valuable and we have a basis for rejecting the claim that all lives are equal based on the point of view of the mentally disabled human. If I can have all and only the mental experiences of a skilled surgeon and all and only the mental experiences of an uneducated laborer, then, if I can enter into a third state in which I choose to be the surgeon rather than the laborer, that allows me to say that the life of the former is, on an objective or at least intersubjective basis, more valuable. Singer acknowledges that this thought experiment “requires us to suppose a lot of things that could never happen and some things that strain our imagination.”28 Putting aside that even Singer recognizes that this thought experiment is largely useless, it is fanciful to think that we could ever understand the subjective experience of a horse. Indeed, it is not certain that we can understand the subjective experience of members of our own species. But the point is that what we would choose in  this thought experiment says nothing about the value of life because that is something that cannot be assessed from any perspective other than the point of view of the individual being as that being. The fact that I would choose to be a normal human rather than a human who is mentally disabled, or a human rather than a horse, or a rich human rather than a poor human is relevant only as a 94

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statement of what I value when I engage in a bizarre thought experiment. It does not and cannot provide anything remotely resembling a “neutral ground” for making determinations about the comparative value of lives.29 I still value my life as much as you value yours even if I would choose to be you; my choice does not mean that what I do not choose may be used as a thing. Singer claims that “[i]n general, it does seem that the more highly developed the mental life of the being, the greater the degree of self-awareness and rationality and the broader the range of possible experiences, the more one would prefer that kind of life.”30 That is just another way of saying that Singer, as a cognitively sophisticated human, values the lives of cognitively sophisticated humans more than he values the lives of beings (human and nonhuman) who are less cognitively sophisticated. That tells us something about Singer, but to claim this position as providing an “objective” or “intersubjective” basis for rejecting the claim that every sentient being is equal in that all have a life that they value, however they value it, provides an excellent illustration of the arbitrary mess we necessarily encounter once we depart from using sentience as the only criterion necessary for personhood. Although there will be persons who can think about their lives in an abstract way, there will be some who cannot but who are conscious, who are connected to the future second by second, and for whom continued existence is in their interest. All have equal value based only on their sentience. Their other characteristics do not give them more value as persons in the sense of their not being used exclusively as resources, but may and probably will justify their different treatment in other respects. Personhood in the sense of having a morally significant interest in one’s life involves only one characteristic—conscious experience—that is not and cannot be a matter of degree. One is either a being who has conscious experience and some sort of mind that prefers, wants, or desires things, or one is not. If one is sentient, then one is relevantly similar to every other being of this 95

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sort in that for all of these beings, there is something that it is like to be them. To talk about degrees of sentience makes no sense. Brigid Brophy said it well, and anticipated the uselessness of Singer’s thought experiment: Your pleasure may be more pleasurable than my pain is painful. You may have received a special revelation to that effect, and your special revelation might be correct. But as neither you nor I can enter into the other’s being or sentiency, we shan’t convince one another; and an impartial, reasonable third person, who can’t enter into either of us, possesses no reasonable scale for judging between us.31

Characteristics beyond sentience cannot be morally relevant in terms of determining whether or to what degree there is a protectable interest in life or else we would be committed to saying that it is worse to kill a normally functioning human than a human with a cognitive impairment. Such an approach involving “degrees of personhood” would commit us to a sort of perfectionism—the idea that the moral value of individuals depends on their having particular virtues or excellences—that most people would find morally odious but it also would involve a completely unworkable situation as there would be literally unlimited variations of the qualities, and quantities of those qualities, that make up personhood when it is considered as requiring characteristics beyond subjective awareness. Animals, Sentience, and Personhood

Where humans are concerned, all moral patients, including those that have none of the characteristics of normally functioning moral agents, are regarded as persons. There is no such thing as a human equivalent of a quasi-person. If you are human, and you are sentient, you are a person. You have a morally significant 96

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interest in life. Killing you would be wrong. We don’t take that position because you don’t really have that interest and we just pretend that you do for the benefit of your family or others who might be concerned that they will be killed if they get late-stage dementia. We recognize that, although you don’t have any of the characteristics of a moral agent (rationality, reflective selfawareness, and so forth) you are still a person. Indeed, it would be silly to require that a human have the characteristics of a moral agent in order to be a person because moral agency is about the characteristics you need to have to participate in social, political, and legal institutions. Someone who has late-stage dementia is not going to do any of that. So we don’t require that such humans have a conceptual framework that has some faint version of agency characteristics in order to recognize that they have an interest in their life and that killing them would be wrong. We don’t require that moral patients be like ghosts of moral agents to be persons. Some moral patients will have some or all of the characteristics that we associate with moral agency but have them to a much lesser degree than normally functioning moral agents. Those moral patients are persons. But so are the moral patients who have none of those characteristics and are merely conscious.32 And those moral patients who do have faint characteristics of moral agents are not persons because they are ghosts of moral agents. They are persons simply because they are subjectively aware. We would not say that someone like Fred needs a particular conceptual framework that is characterized by faint characteristics of agency to have an interest in his life and for it to be wrong to kill him. Indeed, we would find such an assertion to be absurd. But that is exactly what we do with animals. In order for animals to be persons, they have to have some necessarily arbitrary degree of these characteristics to be moral patients with a morally significant interest in their lives, despite the fact that the characteristics of moral agency are wholly irrelevant to animals 97

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and that we will never know what sort of minds they have or be able to come up with an answer upon which we will agree. They have to have faint characteristics of agency. They have to be ghosts of moral agents. Sentience is not enough. To what end? Animals, like humans with late-stage dementia, are not going to participate in social, political, or legal institutions. We are not going to let then make contracts or subject them to criminal liability for their acts. We demand that animals have cognitive characteristics that go beyond sentience because we assume that an animal who is at least similarly situated to a severely compromised human is instead somehow different from that human and only has interests in not suffering. If animals are not ghosts of moral agents, we assume, like Regan and Singer, that animals are just receptacles for pleasure, pain, happiness, and so forth because there is no one there. But this involves a view of what conscious experience means where animals are concerned that we reject where humans are concerned. Where animals are concerned, we assume that an interest in life must be accompanied by a particular conceptual framework beyond mere consciousness. This assumption, which we do not employ in the human context, is equally inapplicable in the nonhuman context. We have a large number of squirrels who live on our property. We often feed them. In fact, every fall, we get pumpkins that are not suitable for carving for Halloween and we put them out in the yard. The squirrels always seem delighted and spend days extracting the seeds. No one would deny that squirrels enjoy eating pumpkin seeds and their enjoyment of the seeds obviously involves a certain kind of cognitive state. Humans also enjoy eating pumpkin seeds. In fact, I love pumpkin seeds. My enjoyment also involves a cognitive state. But my enjoyment of the seeds involves a great many concepts, such as whether the seeds are hulled or hull-less, what sort of pumpkin they come from, where the pumpkins have been grown, the texture of the seeds, whether they have been sprouted, and so on. I assume that these sorts of 98

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concepts are not available to the squirrels and are, therefore, not part of their cognitive state when they enjoy eating their pumpkin seeds. Now, if you, also a pumpkin-seed aficionado, were visiting and we were enjoying some wonderful Styrian sprouted seeds as we watched the squirrels extract and eat the seeds from the pumpkins that had been placed out earlier on the lawn, we would not say that we are enjoying our seeds but the squirrels are not enjoying their seeds because they do not share the conceptual framework that structures our enjoyment of the seeds. Indeed, it would be absurd to make that observation. But we do exactly this where the interest in continued living is concerned. We start from the human case and we observe that the human interest in continuing to live involves a highly structured conceptual framework, at least as far as normally functioning humans are concerned. We then look at nonhumans and ask whether they, too, have an interest in continuing to live and many of us conclude that they don’t because the concepts that influence and structure our thinking about our interest in continuing to live are not available to nonhuman animals. But that is like saying that the squirrels do not enjoy eating the pumpkin seeds because the concepts that structure our enjoyment of the seeds are not available to them. Why we would not claim that the squirrels do not enjoy the pumpkin seeds because they lack our conceptual framework as it concerns pumpkin seeds but do claim that they lack an interest in continuing to live because they lack our concepts about life is probably best explained by Bentham. You will recall from chapter 1 that the reason that Bentham claimed that animals do not have an interest in continuing to live was that they do not contemplate their demise and death as we do. So having an interest in life requires thinking about our life through the lens of our death. But that is just a statement about our fixation on death and no more allows us to say that animals do not have an interest in continuing to live any more than we can say that the 99

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squirrels must have our conceptual framework to enjoy the seeds. If the squirrels finish eating their seeds and start to play, would we ask, “do the squirrels desire to continue to live?” No. The answer would be obvious.33 Using sentience alone is the only fair way to proceed with both humans and nonhumans. Sentience is a characteristic possessed by all moral agents and patients and distinguishes them all from everything else in the world that is not sentient. If we require more than sentience for personhood, then we end up with some beings whose interests will be devalued or ignored because they lack other characteristics that are completely irrelevant to whether those beings are exploited exclusively as resources. If we use anything other than sentience, we end up treating relevantly similar beings in a dissimilar way. For example, and as we saw earlier, we end up treating humans with late-stage dementia differently based on the level of their dementia and whether we can find a point, which will necessarily be arbitrary, at which we can say cognitive ability in any particular situation constitutes continuous mental existence or a psychophysical sense of identity. And that, I submit, would be unfair, particularly when what is at stake may literally be a matter of life and death. To put this in Regan’s language, conscious experience is both a condition for having inherent value and a nonarbitrary and intelligible criterion for allocating equal inherent value to all moral agents and moral patients. But sentience is not only a sufficient condition, it is a necessary one because beings who are not sentient have no interests to protect; so we do not need to worry, as Regan does, about entities that are alive but not conscious. Consciousness is what is common to all moral agents and moral patients and differentiates them from everything else in the universe that is not conscious. It is the only characteristic that is common to all moral agents and patients. It provides the categorical quality that Regan claimed to be the virtue of his subject-ofa-life concept. Once we go beyond consciousness and seek to 100

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allocate inherent value based on experiential welfare over time, or, as Singer would say, continuous mental existence, the question becomes what length of time is necessary and how continuous mental existence must be, and, as we saw above, that inquiry is necessarily and hopelessly arbitrary. There are certainly differences among and between moral agents and moral patients and these differences may be relevant for determining all sorts of issues, but not the issue of whether a being is nothing more than a resource for others. Personhood based on sentience is the only way that equal inherent value can be allocated in a nonarbitrary way. Regan’s position that all subjects of a life are similar in that they all have a life that goes better or worse for them as individuals and they have value beyond being valued by others ignores that that could be said for any being who has conscious experience. Regan did not see this because he believed that if a sentient being were not a subject of a life, that being might properly be viewed only as a receptacle without any value in their own right. But we see humans who do not have the characteristics that he identifies as necessary to be a subject of a life as having value in their own right. We do not see them as mere receptacles. Regan failed to realize that if an animal were a mere receptacle without an experiential welfare, the animal would have to be indifferent as to the contents of the receptacle or as to whether the receptacle had any contents. But no sentient animal is indifferent; sentience is not nociception. There is something it is like to be any being who has phenomenal consciousness. All beings with conscious experience necessarily have an experiential welfare even if they do not have that experiential welfare over some period of time, the designation of which will necessarily be arbitrary.34 In any event, sentience alone provides all that is needed. Even if we can say that some beings lose more when they die than others, it is clear that every sentient being loses something very important: every aspect of their conscious existence. We cannot distinguish 101

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between humans and nonhumans here. All can thereby be harmed in exactly the same way. Sentience is the only fair way to allocate inherent value and the right not to be used exclusively as a resource because if we do not use sentience, then the interests of beings who do not have the arbitrarily chosen “special” characteristic(s) will be ignored and unaccounted for in our moral analysis. We may not know whether some animals have any conscious experience. But there is no such doubt with respect to the vast numbers of nonhumans we exploit for food, clothing, research and testing, entertainment, and so on. Just because we may not know where to draw the line at the margin does not give us license to ignore the clear cases. And the clear cases involve just about all of the animals who are the subject of our institutionalized exploitation. To say that nonhuman animals are persons is not to propose any sort of general equality between nonhumans and humans any more than it would be if we were to say that cognitively disabled humans are equal to normally functioning humans in that neither can rightly be used exclusively as a resource. What is being proposed here is equality in one respect: all sentient beings are equal in that they all have an interest in not suffering and in continuing to live. If we think animals matter morally, we have no choice but to stop using them exclusively as resources, however supposedly “humanely” we may do so, because that is to treat them as things. As we have seen earlier, treating them as quasipersons cannot work as a practical matter because to do so results in ignoring or devaluing animal interests in not suffering even if it were the case that animals have no interest in continuing to live. But if animals have an interest in their lives, treating them as resources for humans is a nonstarter as a moral matter. Most of us recognize that all sentient beings value their lives but then some of us twist ourselves into intellectual pretzels to try to make some sort of qualitative distinction between humans as a species and all other species. We actually try to defend the idea that animals do not have an interest in continuing to live and 102

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that they do not (in their own way) value their lives. But we cannot do that because we cannot enter into the sentience of another. We cannot really know how much anyone—human or nonhuman—values their life. We do not try to make these assessments where humans are involved because we realize that such exercises are pointless and necessarily arbitrary. But we have no problem in very confidently making these assessments where nonhumans are involved. Anthropocentrism

What accounts for our different treatment of humans and nonhumans with respect to personhood? That’s a question that is most easy to answer. Anthropocentrism is the idea that humans are the most important entities in the universe. And anthropocentrism is the only reason why we demand more than sentience for nonhuman personhood. It is clear that both Singer and Regan regard the content of human experience to be more morally significant than the content of nonhuman experience. Singer’s claim to treat similarly situated humans and nonhumans the same is belied by his position that the content of normally functioning human minds has greater moral value than the content of the minds of nonhumans who are self-aware because the latter will be less connected to their future selves. Regan asserts that the content of human experience is more significant than that of nonhumans when he claims that we have an obligation to favor humans over nonhumans in exceptional situations of conflict because humans have greater opportunities for satisfaction of their interests. Linking personhood with cognitive attributes other than sentience is nothing but anthropocentrism and is no different from the racism, sexism, and other forms of discrimination that both Singer and Regan claim to abjure. Anthropocentrism is 103

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what accounted for why animals were excluded from the moral community altogether and treated as things before the nineteenth century, and it is what accounts for why we deny personhood to animals today despite claiming that we regard them as members of the moral community and even supposedly according that status legal protection. Singer and Regan are not alone here. Anthropocentrism is the general philosophical line. Some theorists, such as John Rawls and Roger Scruton,35 argue that animals are excluded from the moral community because they cannot share rights, responsibilities, and duties. Gary Varner argues that self-awareness is not enough; animals must have an autobiographical sense of themselves to count as persons.36 Jeff McMahan, another prominent ethicist, and one who is actually more sympathetic to animals than many philosophers, claims that, in addition to being “largely psychologically unconnected to themselves in the future,” animals are just lesser beings.37 He claims that “animals are incapable of the depths of psychological misery to which most human beings are susceptible” but “their capacity for physical suffering rivals our own.” He adds (echoing Regan): Yet their highest peaks of well-being are significantly lower than those accessible to most human beings. While some animals—dogs, for instance—experience exuberant joy more readily and frequently than many adult human beings do, animals lack other dimensions of well-being that are arguably more important, such as achievement, creativity, deep personal relations, knowledge, aesthetic appreciation, and so on.38

According to McMahan, by being killed, an animal loses a life that is “inferior in quality and quantity.”39 It is not clear as to how McMahan has acquired such keen insight into the inner lives of animals, but all he is doing here is asserting that animal lives matter less because animals do not have the thoughts and 104

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interests that philosophy professors have. They do not show much interest in going to art galleries, or in listening to a Chopin concert, or in reading Plato, or in having the sorts of (often dysfunctional) relationships that humans have. Putting aside that there are many human persons who don’t care very much for at least some of those activities, why would we think that not being able to (or not wanting to) engage in those activities makes a life less morally valuable for purposes of taking that life? Again, Brigid Brophy said it well: To argue that we humans are capable of complex, multifarious thought and feeling, whereas the sheep’s experience is probably limited by lowly sheepish perceptions, is no more to the point than if I were to slaughter and eat you on the grounds that I am a sophisticated personality able to enjoy Mozart, formal logic and cannibalism whereas your imaginative world seems confined to True Romances and tinned spaghetti.40

The thinking that animals are simply “inferior” to humans reflects Mill’s view that a miserable human is better off than a happy pig. What, apart from self-interested proclamation, makes human characteristics “superior” or allows us to conclude that we experience a morally more valuable pleasure when we are happy than a pig does when she is happily rooting in the mud or playing with other pigs? It is this sort of anthropocentric thinking that leads the animal ethicist Robert Garner to say that, “in general terms, the package of cognitive abilities possessed by normal adult humans (including the most and least intelligent and the most and least depressed) is greater than those possessed by most adult nonhumans.”41 That is nothing more than an assertion. One of our rescued dogs, Finlay, is a double-merle sheltie who was born blind and deaf. Approximately 25 percent of every litter of double merles is blind, deaf, or both but normal puppies are quite expensive so, given the property considerations involved, 105

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it makes economic sense for breeders to kill those who are “defective.” Finlay somehow made it to a rescue group and we adopted him. To watch him—guided only by his sense of smell and what must be an extraordinary level of muscle memory—move around the garden at lightning speed, or run through the house, hardly ever touching a wall and only occasionally running into one of our other dogs, makes it clear how self-interested is our proclamation about our superiority. We are not the measure of things. We are one measure among many. Again, the problem with this becomes clear if we restrict our analysis to human beings. Assume we have two humans: a philosophy professor and a factory worker who has no higher education and has no interest in having any discussions that would be regarded by the philosopher as intellectually stimulating. If we were to say that it is better to be a miserable philosophy professor than a happy factory worker, or that philosophers had more opportunities for satisfaction than did factory workers, such assertions would, quite rightly, be viewed as arbitrary and elitist. We would say that both the philosopher and the factory worker are persons and neither has more value for the purpose of using one exclusively as the resource of another. We would not say that the philosophy professor has more moral value and that, if we are in a lifeboat, the philosopher has a greater claim to stay on board than does the worker. Although there is certainly a tradition in Western thought that assigns a higher value to intellectual pursuits than to other sorts of activities, that tradition was shaped almost exclusively by academics and others who valued intellectual pursuits and was not the result of any democratic or impartial assessment of competing pleasures and preferences. The notion that nonhuman animals have pains and pleasures that are different from and lesser than those of humans is no different from asserting that the pleasures and pains of a less-intelligent or less-educated

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human are inferior to those of a more-intelligent or bettereducated one. To the extent that humans and nonhumans have different sorts of minds, those differences may be relevant for some purposes, just as differences between and among humans may be relevant for some purposes, as we saw in the case of Mary and Fred. Any differences between human and nonhuman minds, however, are logically irrelevant to whether we use animals in painful experiments or kill them for other purposes, or whether we exploit animals for food, just as Fred’s inability to do math is not relevant to whether we should take his kidney to save Mary or use him in an experiment to obtain data that may benefit Mary. We cannot claim that humans are superior based on their having more interests, or more intense interests, than nonhumans without begging the question from the outset and engaging in reasoning that, if applied in the human context, would quite rightly be seen as morally objectionable. In response to any claim that a human who lives in an eternal present still must have some conceptual content to their consciousness or else their behavior would be chaotic in every respect and that is what distinguishes humans from nonhumans, the answer is that this is the same for any sentient being. Why would a being that was nothing more than unconnected series of sensations act in anything but a chaotic and random way? Animals must think in some way. Their thinking is not connected to concepts that are linked to symbolic communication as ours is, but they must be linked to some sort of equivalent of the concepts we use or they would be unable to function in their respective environments. To claim that animals react successfully to the challenges in their environment as a result of “instinct” is one step away from the Cartesian position that animals are just machines. So much of our thinking about animals involves a category mistake by characterizing the cognitive abilities of humans and

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nonhumans as being located on the same spectrum when the reality is that animal minds and human minds are necessarily different because animals do not communicate in the way that we do. This does not mean that animals have less-sophisticated minds; it means they have different minds. The use of a quantitative term here—that humans have greater cognitive sophistication—misses the point. The issue for purposes of whether killing them harms them is not whether nonhumans have minds that are faint versions of the minds of normally functioning humans. The issue is whether they have minds. What many ethicists have to say about animals is reminiscent of what Thomas Jefferson had to say: “Their griefs are transient. Those numberless afflictions, which render it doubtful whether Heaven has given life to us in mercy or in wrath, are less felt, and sooner forgotten with them. In general, their existence appears to participate more of sensation than reflection.” 42 Jefferson was talking about human slaves. We can look at Jefferson’s statement and dismiss it as reflecting that Jefferson, a slave owner, had a vested interest in an institution in which sentient beings were commodified. But when it comes to animals, just about all of us are in a position analogous to that of slave owners. Most of us directly participate in the exploitation of animals. That may explain why otherwise intelligent people say things that are as transparently self-interested—and wrong—about animals when attempting to justify exploiting them. A Note About Euthanasia

If animals have a morally significant interest in continuing to live, then how can we justify the euthanasia of animals? That is, if one of our companions—a dog, a cat, or an animal of another species—is incurably ill and is in pain, how can it be morally acceptable to kill the animal if the animal is a nonhuman person? 108

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Does not the fact that many of us—including me—believe that this is a morally acceptable thing to do in certain circumstances mean that we really don’t believe in nonhuman personhood? The answer is no. Let me explain. First, we should be clear that “euthanasia,” properly applied, does not describe the killing of healthy animals. When healthy animals are killed in a municipal facility that does not have enough space to keep the animals, that is not euthanasia. That is just killing. When farm animals are killed and dumped because meat processing plants are closed and there are supply-chain disruptions, that is not euthanasia.43 That is just killing. Second, when an animal is incurably ill or is otherwise in pain that cannot be relieved, a decision to euthanize the animal does not indicate a disrespect for the personhood of the animal. My partner and I have been through the euthanasia decision process many times over the years, and it is a terrible experience. In making a decision that it is time to end the life of one of our nonhuman family members, we try to determine the point at which our companion no longer has quality of life, as measured by no longer eating or otherwise no longer showing any sustained interaction with other human and nonhuman family members. We try to find that point at which we can say that continued living is not in the interest of our friend. If the animal is in unrelievable pain, the decision becomes easier. But if not, we do the best we can do given that we can’t understand how they think about what we are certain they understand in their dog way as the end of their lives. I think it is safe to say that we think that on a few occasions, we may have waited too long. I cannot think of any case in which we acted too soon. In any event, the whole situation is difficult and nothing short of a nightmare. Roger Scruton, who is very critical of animal rights and almost joyfully defends all types of animal exploitation, argues that the fact that it may be our moral obligation to euthanize an 109

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animal, but that we would never consider it our obligation to put an ill human “out of his misery” (certainly not without first getting informed consent and having the human initiate the process), shows that we regard humans as persons and we do not regard nonhumans as persons. We see death as an evil for the human because the human is a person. We do not see death as an evil for the nonhuman and, indeed, we see death as a good thing if the nonhuman is suffering.44 The differences tell us nothing of the sort that Scruton claims. They show, at most, that, where humans are involved, we believe that it is they who must make the decision, and where domesticated animals are involved, we must make the decision (including the decision not to intervene despite the animal’s pain and suffering). That may be yet another argument against continued domestication (an issue we will take up in chapter 5) but it in no way shows that, in deciding to euthanize an animal who is suffering, we are treating a nonhuman as other than a person. In this chapter, I argued that the similar-minds approach to nonhuman personhood ignores a very large elephant in the room: that to be subjectively aware is to have an interest in continuing to live. Every sentient being—however different—is like every other sentient being in that all sentient beings are beings with subjective experience. They are all beings about whom we can ask what it is like to be that being. We cannot ask that about rocks or coffee cups or the Mona Lisa, or anything that isn’t a sentient being. It’s not a matter of an empirical investigation into the nature of animal minds to determine whether animals have faint, ghostly versions of the characteristics of moral agents. We saw that it does not matter what characteristic or characteristics beyond sentience are proposed as necessary for human personhood—whether self-awareness, a particular sort or degree of connection with a future self, or any other cognitive/mental state—there is no way to administer such a scheme as a practical 110

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matter without determinations about personhood being inherently arbitrary. We saw that, as a conceptual matter, it is absurd to claim that we can separate subjective awareness and an interest in not suffering from an interest in continuing to live. And for these reasons, we reject this approach in the human context. We do not have to accord equal treatment in all respects to every human; indeed, that would be impossible, as a practical matter, and would be immoral because differences between or among humans matter morally for some purposes. But, because we think all humans have moral value, and because we recognize that every sentient human values their life however they value it, we accept as uncontroversial that all must be accorded the essential protection of personhood: the protection of one’s life from being used exclusively as a resource for others. To have moral value as a human is to have at least that level of protection. A similar analysis applies where nonhumans are concerned. If animals are the sorts of beings who are conscious and can suffer, then to deny that they have an interest in continuing to live is nothing more than a stipulation we make so that we can delude ourselves into thinking that continuing to use and kill them is not the injustice that it is. If you agree that animals matter morally, then you must also agree that, even if we treated animals in a supposedly “humane” way (whatever that means), it is wrong to use them exclusively as our resources and to kill them. In the next chapter, we will consider the right not to be property, or, phrased another way, the right of sentient beings to be persons and not things.

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{4} The Right Not to Be Property

IN THE PREVIOUS CHAPTER, we saw that there is no reason,

other than anthropocentrism, to condition the personhood of nonhuman animals on any characteristic other than sentience. In this chapter, we are going to see that saying someone is a person is another way of saying that they must have a right not to be property. To be property is to be a thing. We reject human slavery (which can take a number of forms) because it treats persons as things. If humans are going to be members of the moral community at all, they at least must have the right not to  be property. We do not think that supposedly “humane” slavery is fine; we maintain that it is necessary to ensure that no suffering is imposed pursuant to using others exclusively as resources. If animals are going to matter morally, they must have that same right. I am not proposing that nonhuman animals be given other rights. Nonhumans are not persons because they have all the rights that humans have; they are persons because they are the sorts of beings who have moral value and that means that they must have one right not to be used exclusively as resources for others.

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The Concept of a Right

Although “right” is used in a variety of contexts, I have used it here to describe a way of protecting an interest. There are two general ways of protecting an interest: we can protect the interest as a consequential matter and stop protecting the interest when the consequences—however understood and assessed—of doing so militate against that protection, or we can protect the interest despite negative consequences. The latter involves rights protection. For example, when I say that I have a right to the truth, what I mean is that you should respect my interest in having you tell me the truth even if you think that I will not be happy with what you tell me and there will be negative consequences. To say I have a right to the truth means that you do not get to balance the plusses and minuses to decide if you want to tell me the truth; my interest is protected even if you think that we’d all be happier and better off if you lied. Some of our moral rights are considered integral to our sociopolitical identity and those rights may be protected by law. For example, in liberal democracies, the law often protects our interest in speaking with a right of free speech. That means that my interest in speaking truthfully will be protected even if others do not like what I say. The protection for my speech is not dependent on assessing the consequences of my speech and determining, on balance, whether people like what I say. Similarly, the law protects my right to life by prohibiting others from killing me even if considerable benefits would result from doing so. Killing me and using my organs may save the lives of a dozen others, all of whom are truly wonderful. But my interest in my life is protected with a right and beneficial consequences for others cannot justify ignoring my right. When I say that we should accord to sentient animals the right not to be used as property, I mean simply that the interest that

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animals have in not being used as property should not evaporate simply because we would derive benefits from ignoring their interest and using them as resources. If nonhumans are persons, then that means that we cannot ignore their personhood simply because we would thereby get some benefit. Having a right not to be used as property is necessary for moral significance. If animals do not have this right, then they will be used exclusively as resources whenever it is in the interest of property owners (including consumers of animal products) to so use them and they will never stop being things. Let’s consider the concept of the right not to be property in the human context. Humans and the Right Not to Be Used as Property

Although we have all sorts of disagreements about what human interests ought to be protected by rights, we do not disagree about the right of humans not to be chattel property. Yes, slavery still exists in various forms, including as sex trafficking. But no one defends any form of slavery and no one should. Why do we debate about whether the human interest in good health should be protected with a right to health care but we don’t debate whether there should be a right not to be a slave? The answer is simple: we recognize that, if a human is a slave, that human is treated as if they had no moral value. That human is a thing that has only the value we accord them. We can certainly fail to treat a human person as an equal member of the moral community. Indeed, the claim of sexism is the claim that a person’s interests are being undervalued or ignored on the irrelevant basis of sex. The claim of racism is the claim that a person’s interests are being devalued or ignored on the irrelevant basis of race. But these are all situations in which we are talking about persons—humans, whom we have already recognized as not being just resources—and inquiring about 114

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whether they have been given their due in light of their status as persons. So persons may be members of the moral community without being full or equal members of that community, or where there is controversy about what full membership means or requires. But slaves are not members of the moral community. They are outside the moral community. They are things. We can think of the moral community as a big auditorium with different levels of seats. If you are a person, you might not be in the best seats and you might not be in the seats that rightly belong to you because you are not getting your due. But you are in the auditorium. If you are a slave, you are a thing. You are not admitted to the auditorium. We long ago recognized that if humans are going to count morally, then they cannot be things. They must be persons, even if they are not necessarily full or equal persons, or there is disagreement about whether they are being treated equally or what equal treatment requires. And their personhood requires the protection of a right. The right not to be used exclusively as a resource is what we might call a basic right.1 This innate or basic right is a prerequisite to having any other rights. The basic right may be described in different ways depending on the context—we can talk about the right not to be property; the right not to be a thing; or the right to be a person. But however it is described, the basic right is a right that is necessary for the enjoyment of other rights. It is a right that, if not possessed, makes other rights meaningless in an important sense. If a human does not have the right not to be property, and the human’s fundamental interests in continuing to live and in not suffering may be valued at zero by that human’s owners, then any other rights that the human may possess are meaningless. If you have the right of free speech but your owner can decide to value you at zero and kill you, your right of free speech is meaningless. 115

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In some legal systems, the right not to be enslaved is contained explicitly in a legal rule. This may occur in places in which chattel slavery actually once existed. For example, in the United States, the Constitution contains an amendment that prohibits slavery. But we may think of the right not to be a chattel slave as a basic, prelegal right; it is first and foremost a fundamental moral right that we embrace and see as held by all humans because they are persons; their lives matter; they are not just resources. It is the foundation for all other rights. The basic right not to be used as property is the minimum rights protection that one needs to be a member of the moral community. One can have other rights but one needs at least that right to count at all. Another way of thinking about the right not to be a thing is to consider the idea of inherent value—that humans have value in their own right because of the sorts of beings they are. That is simply a way of saying that, if humans are not to be reduced to the status of being things, we must recognize their having value that goes beyond their value as things. If we do not, then humans risk being treated as nothing more than commodities. We don’t say that human slavery, if “humane,” is morally acceptable. Why not? The answer is clear: because any suffering incidental to use as a slave is morally unjustifiable. It is, of course, “better” in one sense if a slave owner imposes less suffering on his slaves rather than more. But that misses the point. Any suffering imposed on them incidental to use exclusively as a resource is wrong because it is a negation of the personhood of the enslaved human. They are persons; they should not be used exclusively as resources. To say that we accord every human the right not to be used as property does not mean that we have an obligation to protect humans from all suffering. We don’t have such an obligation, nor could we have such an obligation. Humans are going to suffer in life. They are going to die. We can try to mitigate suffering through measures such as providing effective health care and 116

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other social resources. But hard as we try, we will all suffer and we will all die. However, all suffering and death that are caused by using sentient beings exclusively as resources can be prevented; all we have to do is acknowledge a right not to be used exclusively as a resource. The same basic right that rules out slavery irrespective of whether it is “humane” rules out all use of humans exclusively as resources or commodities. Many of the acts that we criminalize are acts that involve one person using another person exclusively as an object, a thing. An example of such an act is rape. Having a right not to be used exclusively as a resource also does not mean that we cannot use other humans as means to ends. We do that every day and we rightly consider it a normal part of life. When we need a plumber, we call one and pay the plumber to fix the problem. We use the plumber as a means to an end (to get the problem fixed) and the plumber uses us as a means to an end (to make a living). But neither of us can use each other exclusively as a means to an end. We cannot kill the plumber if we do not like the work done and the plumber cannot kill us if we do not pay the bill. We cannot reduce each other to nothing but resources with no morally significant interest in our lives. All humans have an interest in not being used as mere resources. They have an interest in not being vulnerable to someone else having the ability to value their fundamental interests, such as their interest in not suffering and their interest in their lives. It is not necessary for humans to think about this in any abstract way. That is, Fred, who has late-stage dementia, may not have an express thought that he does not want someone else to have the ability to decide whether he will be made to suffer or die. It is enough that it is in Fred’s interest not to be in that situation. We protect this interest with a right and say that every human, irrespective of their level of cognitive development, has the right to not be treated exclusively as a resource for others. No one may be treated exclusively as a means to an 117

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end. We may not accord them the same resources that we accord to a skilled surgeon or other highly compensated person, but all humans are accorded the right not to be used as property irrespective of their cognitive characteristics beyond their being subjectively aware. This reflects the idea that we encountered in chapter 3 that all sentient humans are seen as persons. Nonhumans and the Right Not to Be Used as Property

If animals have moral value, then they cannot be things. They, too, must have the right not to be property. Our conventional thinking about animals—the animal welfare position—has assumed that using and killing animals is not per se problematic because animals do not have an interest in continuing to live; they just have an interest in not suffering and our moral obligations to animals are limited to exploiting them in a “humane” manner. As we have seen, the property status of animals ensures that their interests in not suffering will be undervalued or ignored, and certainly will not be accorded equal consideration. The status of animals as property ensures that their interests will always count for less when they are balanced against our interests as persons with rights in them. Because animals are property and we do not regard killing them as per se problematic, we do not question uses that are themselves unnecessary. And if we use and kill animals for food, clothing, or other purposes, then their interest in continuing to live is necessarily frustrated, however supposedly “humanely” we may treat them. Some of my critics have argued that property status actually benefits animals. For example, Cass  R. Sunstein, whom I discussed in chapter 1, argues that owning animals imposes a moral obligation to protect them, and their property status is an incentive for others not to harm them.2 A slave owner in 1840 could have made the same argument (and there were some who did)

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that the institution of the human ownership of other humans protected the latter. Such an argument begs the question by assuming the legitimacy of the institution of ownership when, in fact, it actually protects owners from any serious scrutiny of their decisions as to how to value their animal property. Sunstein seems not to appreciate that the institution of animal property is not about the well-being of domestic animals; it is about the rights of property owners and rational property ownership in a context where the property is sentient. The protection afforded to animals is minimal. And, even if the level of protection were to be set higher, the level of protection would still be low and our ability to use and kill animals means that we can continue to treat them as beings without a morally significant interest in their lives. This is inconsistent with their being persons, as we saw in chapter 3. As in the case of humans, according animals the right not to be property does not mean that animals are protected from all suffering; animals living in the wild will suffer. All nonhumans will, like all humans, die. But it does mean that animals should be protected from all suffering and death incidental to being used as commodities. If animals have a morally significant interest in not being used and killed, then any suffering and distress relevant to their use as property is morally unjustifiable just as any suffering that is imposed on a human incidental to slavery is morally unjustified. I emphasize (again) that I am not talking about the right not to be property as a legal right. It is a prelegal, basic moral right. Once there is sufficient acceptance of this moral right, legal protection will follow. However, it makes no sense to talk about the right not to be property as being a legal right when animals have the legal status of property. Indeed, talking about any respectbased rights for property is, for reasons that I have articulated  elsewhere, problematic.3 The legal rules that are usually

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characterized as involving “rights” for animals are rules that involve welfare measures that merely ensure that animals are exploited in an economically efficient way, and that is an inappropriate use of “rights.” If we recognize the right of sentient nonhumans not be used as property, we will be committed to abolishing the institutionalized exploitation of animals. Animals will be protected against any suffering and any death that result from their being used exclusively as resources, just as humans are. If we stop using them as resources, the number of domestic animals produced will go down. As I will discuss in chapter 5, there are serious questions about whether domestication can be morally justified. In any event, we should care for the domesticated animals now in existence but we should produce no more. With respect to animals who are not domesticated, we should, for the most part, leave them alone. We should not deliberately kill animals (absent a self-defense justification) and we should endeavor to avoid negligently harming animals who are not domesticated but who live in proximity to humans. Recognizing the right of animals not to be treated as property does not commit us to intervening to stop foxes from eating rabbits. To say that we have an obligation to not use animals exclusively as resources does not mean that we have an obligation to intervene to help them (although many of us will choose to do so). Finally, although utilitarians reject moral rights, a good argument can be made that they, too, must reject the property status of animals.4 As I discussed in chapter 2, the property status of animals makes the application of the principle of equal consideration to animal interests extremely difficult, if not outright impossible. The status of animals as property creates a structural imbalance that makes impossible any meaningful assessment of animal interests. That property status is a twoedged sword wielded against their interests. First, it acts as

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blinders that effectively block our perception of animal interests as similar to ours because human “suffering” is understood as any detriment to human right holders. Second, even if human and animal interests are recognized as similar, animal interests will always fail in the balancing because the property status of animals is always a good reason not to protect animal interests unless to do so would benefit humans. In the usual situation, there is going to be a conflict between an animal who has the status of being chattel property and a human who has rights and, in particular, property rights that involve the animal or animals as a general matter. The idea that we are going to be able to apply the principle of equal consideration to a nonhuman animal who is property is similar to the idea of trying to apply the principle of equal consideration to a slave. The slave’s interests will always be undervalued or discounted relative to the slave owner. That may be one reason why Bentham, a utilitarian, rejected the institution of human slavery. It is certainly plausible that Bentham recognized that, if a human is a chattel slave, that human’s interests cannot receive equal consideration simply because chattel slavery creates structural inequalities that make regulation impossible.5 Bentham did not see that, just as the institution of property resulted in ignoring or devaluing the interests of human slaves, it also results in ignoring or devaluing the interests of nonhuman animals. The property status of animals condemns animals to  remain as they were before the supposed revolution of the  nineteenth century— things without morally significant interests. If sentient beings are, as utilitarians claim, to have morally significant interests in not suffering, then they must be treated as persons—not quasi-persons—and this rules out their being property. This certainly must be true if utilitarians accept that equal consideration of interests is a moral right that is necessary

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for any moral theory, including utilitarianism. But even if utilitarians do not see equal consideration as involving a right (because they reject rights), they must recognize—at the very least—a presumption against property status in order to deal with the structural problems that property status creates. If utilitarians were to opt for the presumption, the difference between the utilitarian and the rights theorist would be that the rights theorist would protect sentient beings with a right not to be used exclusively as resources irrespective of consequences; the utilitarian would protect sentient beings with a rebuttable presumption against being used as property that would yield only if there were some moral dilemma and the consequences required it. But the institution of animal property that allows the use and killing of animals as resources for humans should, other things being equal, be objectionable to the utilitarian. We have seen that another way of talking about the personhood of animals involves the right to not be property. We recognize that, if humans are to not be things and are to be members of the moral community at all, they cannot be the property of others. If we agree that animals have moral value, we cannot deny them this one right as well. As in the case of humans, recognizing that animals have moral value and according to them a right not to be property does not mean that we protect nonhumans from all suffering and death. It does, however, mean that we protect them from all suffering and death that result from their being used exclusively as resources for humans. Although utilitarians reject rights, it seems that even they, too, must reject the property status of animals either as a matter of a right of equal consideration that is integral even to utilitarianism, or as a presumption that accepts property status only when utility requires that we ignore equal consideration. Just as Bentham arguably recognized that the property status of humans means that human slaves would always count for “less than one” 122

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relative to human persons with property rights in those slaves, so, too, will animals count for less. In chapter 5, we will consider why, if animals matter morally and cannot justifiably be used as resources for humans, veganism is a moral imperative and a matter of justice.

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IF WE AGREE THAT ANIMALS have moral value and we can-

not justify treating animals exclusively as resources, we must accord to them the one right—the right not to be property— that we accord to all humans as providing the minimum protection necessary to have moral value. We must stop using nonhuman animals as resources. All animal use—for food, clothing, entertainment, biomedical research, and so on— assumes that animals are things. Once we accept that nonhumans are persons, all of these uses must stop. None of these institutionalized uses can be justified morally. Our obligation to stop using animals is not only one that concerns animal exploitation as a social matter; it is an obligation that we all have as individuals. Chattel slavery was wrong because it treated humans as things; it violated their right not to be used as things. There was an obligation to end the institution. But there was also an individual obligation not to participate directly in slavery by owning slaves. Sex trafficking is wrong because it treats humans as things; it violates their rights not to be used exclusively as resources. We must end this institution and not campaign to make it supposedly more “humane,” and we

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must also not participate in it by purchasing the services of someone who is a victim of this practice. If animals are nonhuman persons, then we have an obligation to promote the abolition— not just the regulation (which is pretty useless anyway)—of nonhuman exploitation as an institutional matter. On a personal level, we must no longer participate directly in animal exploitation—by eating, wearing, or otherwise using animals—to the extent practicable. Our using animals as resources is tantamount to acknowledging that animals are things. If animals are nonhuman persons, we have an obligation to live as vegans. Recall the definition of veganism that I provided in the introduction: veganism involves not eating, wearing, or using animals or animal products to the extent practicable with the goal of abolishing all animal use because such use cannot be morally justified. Recall also that I made three points when I introduced this definition: First, veganism is not just a matter of diet. Vegans also do not wear animal clothing, use products that contain ingredients that involve animals, or patronize zoos, circuses, rodeos, or other forms of entertainment that involve animals. Diet is often the focus of discussion about veganism because our numerically most significant use of animals—by far—is for food; our main contact with animals is as food. As long as we are eating animals, we are unlikely to be able to appreciate that other animal uses are similarly objectionable. Once we stop eating animals for moral reasons, it becomes easy to see how other uses are also objectionable. In any event, although veganism is not just about food, most of our discussion will focus on food. Second, being vegan requires that we not exploit animals to the extent that is practicable. It is impossible to avoid all animal use in that there are animal by-products in road surfaces, plastics, and so on. What veganism requires is that we not participate directly in animal exploitation when we have a meaningful choice. Third, veganism is a moral imperative. It is

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something that we have a moral obligation to do if we agree that animals are not things. It is a matter of justice. In this chapter, we will explore veganism further. Isn’t Vegetarianism Sufficient? (Preview: No)

It is common to encounter those who agree that eating meat raises a moral issue because, unless one is eating animals who have died of natural causes, meat necessarily involves killing animals. Yet they claim that products made by animals, such as milk and eggs, are not necessarily morally objectionable because animals do not have to be killed to make these products and, if the animals involved are treated well, there is nothing wrong with consuming them. Let’s be clear: There is no coherent distinction between meat and dairy or eggs. They all involve suffering. They all involve death. Laying hens are produced in industrial hatcheries where the chicks are incubated in machines. After they peck their way out (about three weeks), having absolutely no contact with their mothers, the chicks are sexed and the male chicks are ground up alive or gassed or suffocated upon hatching because they are of a species whose flesh is not suited to be eaten. Billions of male chicks are killed every year. A developing technology, which promises significant cost savings to the egg industry, claims to be able to sex the birds while they are still in the egg and allow for destroying the male birds before they hatch. But even if that technology works, is economically feasible, and is widely adopted, it would only eliminate one horrible aspect of a very horrible industry. Laying hens have been selectively bred to lay between 250 to  300 eggs per year; undomesticated chickens living in their natural habitat lay between ten to twenty eggs per year. This unnatural production is extremely harmful to the chicken, 126

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resulting in various bone defects, deformities, and fractures, as well as serious and often fatal disorders of the reproductive tract. Many chickens live their lives in a small, barren, and cramped wire cage—the conventional battery cage—where they have less area than the size of a standard sheet of paper and their movement is severely restricted. Egg production starts to decline after about two years of age, but the chicken can live for up to a decade (an undomesticated chicken can live for thirty years). And once egg production begins to diminish, the birds are slaughtered. Debeaking (to prevent the birds who are in close proximity from pecking each other) and forced moulting, which involves starving the birds to cause their feathers to fall out so that new growth can occur, are routine in most egg production. We could in theory do egg production differently and in a way that reduced the harm to the birds. But that harm cannot be eliminated. There are niche brands of supposedly more “compassionate” eggs—including those produced by hens in “enriched” cages (a cage that is larger than the conventional battery cage but houses more birds and usually includes a nest box, perch, litter area, and increased height), “cage-free” barns (which is, in effect, one large cage often involving multitiered aviaries where thousands or tens of thousands of birds are confined), or “freerange” barns (cage-free barns that have limited and restricted access to an area that is attached to the barn but that allows the birds to be outdoors for a period of time). Some jurisdictions, such as the European Union, have rejected the conventional battery cage and require the use of at least the “enriched” cage although it is not clear that all producers have yet complied with the requirement. Moreover, as discussed earlier, the “enriched cage,” which is arguably becoming a new industry standard, does not involve significant welfare advantages. There are some smaller farms where the birds live in what can more accurately be called “free-range” conditions. 127

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In any event, the most supposedly “humane” commercially produced eggs reduce only a small part of the harm when the process is looked at as a whole. Even if the housing and treatment of the hens could be improved significantly and all harm incidental to their housing and confinement were eliminated—a most unlikely scenario—and even if the chicks could be sexed before birth and no male chicks were killed after birth, it would still be the case that the hens will suffer physical harm as a result of their unnatural egg-laying capacity and hens whose production diminishes will still end up being slaughtered. Proponents of “happy” animal foods point to the practice of people who keep chickens in their backyards and collect and eat (and share with others or sell) their eggs. Any claim that this practice does not involve harm to the chickens ignores that most of these backyard farmers get their chicks (who are often sent through the mail), or the eggs that they incubate themselves, from the same hatcheries that produce birds for the large factory farms—the same hatcheries that debeak, confine, and overbreed the laying hens and that kill the male chicks. The hens that these backyard farmers keep and use are the same selectively bred birds who overproduce eggs and who suffer from serious health problems. And many backyard farmers kill their birds after their egg production declines. Moreover, the amount of calories expended and nutrients lost to produce the unnatural numbers of eggs that these selectively bred birds lay is considerable, and many animal sanctuaries attempt to mitigate this harm by feeding the eggs back to their rescued hens. The hens clearly have a prior claim on their eggs.1 I was once at an academic conference where someone proposed that we could have commercial egg production without harming animals if the hens were kept in comfortable housing and, when their egg production decreased, the hens were “retired” to comfortable housing to live out their natural lives. The person proposing this defined “comfortable housing” as 128

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free-range conditions where the hens were able to choose at any time being in a spacious barn or outdoors. There are hundreds of millions of hens involved in egg production at any given time in the United States alone. We have not figured out how to provide for a minimally decent retirement for all humans. The idea that the solution to the problem of the harm of egg production is to have these sorts of “retirement” communities where we would have billions of birds in a few short years not only ignores that such a situation would not deal with the many aspects of egg production that harm the hens (there would still be harm), but also provides an excellent example of what I referred to in the introduction when I described much academic thinking about animal ethics as not being particularly useful. There will always be suffering and death involved in egg production. With respect to milk, cows have to be impregnated regularly to keep giving milk. They are usually inseminated through the agency of a human arm that inserts bull semen while the cow is restrained. The male babies are usually sold off to be veal calves. The female babies are removed and put into dairy production. Separation of mother and baby causes great distress. The mother will often cry for days, and she will often try desperately to follow her baby as the baby is taken away. Just as the modern laying hen has been bred to produce large quantities of eggs and this has an adverse effect on the health of the hen, the modern dairy cow has been bred to produce much greater quantities of milk and this increased production takes its physical toll on the cow. Although cows can live up to thirty years, they are usually slaughtered when they are five or six years of age after only about three years of being a producing member of the herd. There is suffering and death in a glass of milk just as there is in the steak. Animals used for dairy often live longer than their counterparts used for meat, are subjected to as much, if not more, suffering, and end up in the same slaughterhouse. 129

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As in the case of eggs, it is possible to produce dairy in a way that reduces harm. Alongside the “happy” eggs you will find in many supermarkets, you will find supposedly more “compassionate” milk. For example, some farms allow the mother and baby to stay together for several days before the baby is removed and shipped off to be a dairy cow or a veal calf. But even if we assume that these commercial “higher-welfare” products really do involve reduced harm, we are talking about harm reduction of an insignificant or minor amount when we consider the process as a whole. And the supposedly most “humane” dairy production still involves killing the male calves and, if the calves are allowed to stay with their mothers for a longer period, limiting the milk that the calves can drink. It should also be noted that most cheese is made with rennet, enzymes that thicken the milk and are obtained from the stomachs of unweaned calves who are slaughtered for veal. The use of cows (and other animals) to produce milk and milk products will always involve suffering and death. It is important to understand that, if animals are persons, discussions about how much we can reduce suffering—whether in the context of meat or dairy or eggs or any animal products—are beside the point. All animal products involve at the very least some suffering and death from the use of animals as resources, and, if animals are persons, then we can no longer justify any of the suffering and death we impose on animals incidental to that use. If animals are persons, they must have a moral right not to be used exclusively as resources, however supposedly “humanely” we do so. All of the suffering and death we impose on them incidental to use is not justifiable because it reflects our use of animals as things. We should care for those animals presently in existence but we should stop bringing domesticated animals into existence. We should endeavor to not interfere with nondomesticated animals.

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A Note About the History of Veganism as a Moral Imperative

Many—indeed, most—animal advocates reject the claim that veganism is a moral imperative and argue that, although animals matter morally, the goal ought to be the reduction of animal suffering and not the abolition of animal exploitation or, at least, that the reduction of suffering is, as a moral matter, as valid a goal as the abolition of animal use. I reject that claim in part because it does not take account that the status of animals as chattel property means that animal welfare standards will always be low and in part because animals, however supposedly “humanely” they are treated, will still be used as resources, which denies their personhood. I note, and will discuss briefly, that, at the outset of the vegan movement, veganism was recognized as a moral imperative and not merely as a way of reducing suffering. Although the word vegan was not coined until 1942, the idea of abjuring dairy and eggs, in addition to animal flesh, can be traced back at least thirty-five years earlier in Great Britain (and even earlier if one considers Lewis Gompertz [1783/84–1861], a vegan who was a founding member of what later became the Royal Society for the Prevention of Cruelty to Animals). Starting in 1909, some members of the British Vegetarian Society, which had formed in 1847, began to question whether, on grounds of morality and, to a lesser degree, health, a rejection of flesh foods could be reconciled with the continued consumption of dairy and eggs. The debate continued on and off from 1909 until 1942, when the Vegetarian Society declined a request to devote a section of its magazine, The Vegetarian Messenger, to those within the society who rejected dairy and eggs. In 1944, Donald Watson, who had been secretary of the Leicester Vegetarian Society, and several others decided to start The Vegan Society to oppose the consumption of dairy and eggs.

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Why “vegan”? Watson later stated that “vegan” represented “the first three and last two letters of ‘vegetarian’—‘the beginning and end of vegetarian.’ ”2 This reflected that veganism was the natural end point of a vegetarian diet. The group started a quarterly magazine called The Vegan News, which later became The Vegan. The early vegans believed that their diet was not only more sustainable, but more healthful than one that included dairy or eggs. It was, however, clear that they were also motivated by at least three ethical concerns. First, they were concerned about the effect that eating animals had on the moral and spiritual development of humans. In the first issue of The Vegan News, Watson and his colleagues explained that vegetarianism “is but a half-way house between flesh-eating and a truly humane, civilised diet, and we think, therefore, that during our life on earth we should try to evolve” to a diet that excludes all animal products.3 They claimed to “suspect that the great impediment to man’s moral development may be that he is a parasite of lower forms of animal life” and expressed the view that “the spiritual destiny of man is such that in time he will view with abhorrence the idea that men once fed on the products of animals’ bodies.” 4 Second, the early vegans, like the vegetarians, were concerned about the killing and cruelty inherent in the production of animal foods. Vegetarians abjured meat because animals had to be killed in order to be eaten. But, the vegans argued, dairy involved killing the male calves born to dairy cows, who were themselves killed after their milk production slowed. Moreover, the separation of dairy cows from their calves itself caused tremendous distress to both mother and baby. Egg production required the killing of the male chicks, and of the hens themselves after they became less productive. The battery system was just beginning to appear in Britain in the mid-1940s and intensification supported the cruelty argument. 132

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Third, and perhaps most interesting, vegans from the outset expressed a general concern about the exploitation of animals that went beyond the cruel treatment and slaughter of animals and that rejected animal use altogether. In 1944, The Vegan Society recognized that “our present civilisation is built on the exploitation of animals, just as past civilisations were built on the exploitation of slaves.”5 In 1945, the society stated, in the context of rejecting all animal use, including for honey: “The object of The Vegan Society is to oppose the exploitation of sentient life whether it is profitable to do so or not.” 6 They maintained that the mutilation and slaughter of animals “presents us with a grave responsibility, for morally there seems to be no difference between such behaviour and similar behaviour to human beings.”7 In 1949, Leslie J. Cross, an early and influential vice president of The Vegan Society, wrote that veganism was about “the abolition of the exploitation of animals by man” and offered a definition of veganism: “ ‘the principle of the emancipation of the animals from exploitation by man.’ ”8 He made clear that “emancipation” meant the end of domestication. He argued that animals had “rights relatively equal to” human rights and said that all animal exploitation per se, irrespective of treatment, violated those rights.9 In 1950, The Vegan Society pledged “to ‘seek to end the use of animals by man for food, commodities, work, hunting, vivisection, and all other uses involving exploitation of animal life by man.’ ”10 Cross wrote, “Our aim is not to make the present relationship between man and animal (which if honestly viewed is mostly one of master and slave) more tolerable, but to abolish it.”11 In 1979, when The Vegan Society became a registered charity, it adopted a definition of veganism as “a philosophy and way of living which seeks to exclude—as far as is possible and practical— all forms of exploitation of, and cruelty to, animals for food, clothing or any other purpose. . . . In dietary terms it denotes the 133

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practice of dispensing with all products derived wholly or partly from animals.”12 Although there were certainly strains of dissent and disagreement within the early vegan movement, it is clear that, in certain respects, it anticipated the animal rights movement by several decades in that at least some of the key vegan pioneers were calling for the elimination of all animal exploitation. They were promoting veganism not merely as a diet or as a way of reducing cruelty to animals, but as a clear and unequivocal moral imperative reflecting the abolition of all animal exploitation in one’s life and as a necessary part of abolishing animal use by society. The fact that veganism is often presented now as one way among others to reduce suffering, and not as a moral imperative, reflects the fact that almost none of the large animal charities that compose the modern “animal movement”—including, unfortunately, The Vegan Society as it now exists—maintains that veganism is a moral obligation for anyone who agrees that animals matter morally.13 To the extent that these charities promote veganism, they do so as a way of reducing animal suffering and not as the thing we must do if we recognize that animals have moral value. The modern animal movement has embraced Singer’s view that veganism is not necessary. For the most part, these charities promote reduced animal consumption, welfare reform campaigns, and single-issue campaigns—all of which perpetuate continued animal exploitation. We will consider these measures in the next section. Measures That Fall Short of Veganism: The Perpetuation of Animal Exploitation Reducetarianism

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use. But that is exactly what many animal advocates promote, particularly when it comes to eating animals, which is our numerically most significant use of animals. For example, many animal advocates promote the idea that, instead of promoting veganism as a moral baseline, we should encourage a reduction in the consumption of animal foods and that we should praise any such reduction as normatively good. Many prominent animal advocates, including Peter Singer, support some version of what is called “reducetarianism,” which, in essence, maintains that we should reduce our intake of animal products but that we are not morally obligated to become a vegan. The best-known reducetarian campaign is probably “meat-free Monday.” Many animal charities that ostensibly promote veganism claim that, although veganism is a good thing, reducing the intake of animal foods is itself good and should be promoted as a morally good thing, and that it is not necessary, or is even “fanatical,” as Singer maintains,14 to promote veganism as a moral imperative. Reducetarian measures by definition do not promote veganism as a moral baseline and necessarily accept the status of animals as things. Consider the matter in a human context. Take any fundamental rights violation—from human slavery to torture to genocide. Would we—in any of these situations—take a position similar to the reducetarian position? Would we say: “Stopping torture would be terrific but it’s not necessary, and it’s also good to promote any reduction in torture, so we ought to praise a dictator who forbids torture on Sundays and not be fanatical by promoting the complete cessation of torture”? Would we say: “We oppose slavery but it’s not necessary to abolish slavery. Any reduction in the suffering of slaves should be promoted as a morally good thing and a slave owner who beats his slaves nine times a week rather than ten times a week should be praised. It’s fanatical to insist on the abolition of slavery”? It is, of course, “better” that the dictator or the slave owner impose less harm than more. But that does not mean that the 135

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imposition of less harm is something that should be praised and promoted. That is precisely what those who promote any version of reducetarianism invariably do. Gimmicks like “meat-free Monday” suggest that eating animal foods other than meat on Monday is something that is normatively good and praiseworthy and whatever one eats on the other six days is not an urgent matter of moral concern. Those concerned about racism would not promote “racist-joke-free Monday” because that would be to suggest that racist conduct other than jokes is less problematic and that racism on the other six days of the week is not a matter of profound moral concern. Reducetarianism of any sort trivializes the serious moral issue at stake. Related to this notion of reducetarianism is the concept of the “flexible” vegan—the person who is vegan some of the time and not vegan some of the time. So a “flexible” vegan may be someone who eats entirely plant-based meals some, but not all, of the time. Singer claims that he is a “flexible vegan” who will eat animal products while traveling or at someone else’s house. As I mentioned in the introduction, the class of “flexible vegans” includes all nonvegans. No one eats or wears animals 100 percent of the time. Sometimes, probably quite often, they do not eat animal products. As a moral matter, being a “flexible” vegan is similar to being “flexible” with respect to the violations of fundamental human rights. Fewer violations are better than more; but none can be justified, and we should never promote any level of fundamental rights violations as morally acceptable or as indicative of some sort of moral progress. If someone cares about the issue of animal use and agrees that veganism is a moral imperative but is not willing to become vegan, or to become vegan immediately, then they are free to choose whatever steps short of being vegan they want to take. But it is problematic to promote as a moral position that anything short of veganism can discharge our moral

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obligations to animals if we believe that they are not things and that they matter morally. Reform Campaigns

Promoting measures that fall short of veganism is also reflected in campaigns that support animal welfare reform rather than promoting the abolition of animal use. These campaigns, which are promoted by most of the corporate animal charities, seek various reforms that they claim will make animal use supposedly more “humane.” As we saw earlier, the property status of animals guarantees that welfare standards will always be low. And, as I have also discussed, welfare reform efforts ignore the fundamental moral principle that, if animals are persons, then we are acting unjustly by imposing any suffering on them incidental to using them as things. There is, however, another aspect of welfare campaigns that I mentioned in chapter 1 and want to discuss further here. As I wrote in 1996, the modern animal movement maintains that better animal welfare will lead eventually to greater public sensitivity to the issue of animal exploitation and then to the end of animal exploitation or, at least, to a significant reduction in animal use. The problem is that there is absolutely no evidence that supposedly higher animal welfare leads to abolition or reduction. What has happened, however, is that animal charities and industry (broadly defined as those who produce or sell animal products) have, in many respects, become business partners.15 The charities campaign for minimal changes and often target practices that are economically vulnerable, industry initially resists but then agrees to an even lesser change often phased in over a long period and in a way that accommodates its economic interests, and both benefit. The charities get to declare victory and claim that their campaign has successfully

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persuaded industry to take animal welfare more seriously, which helps their fundraising, and the latter, praised by “animal people” for agreeing to the reform that may even increase their production efficiency (and certainly never harms them seriously), get to reassure the public that they share the public’s concern for the “compassionate” treatment of animals in marketing whatever product they sell. Some of these charities even have programs where they certify animal products as “humane.” The “happy” eggs and milk that I discussed earlier in this chapter are often products that are certified or promoted by animal welfare charities, and some certify or promote “happy” meat as well. The partnership between animal charities and institutional exploiters is a win-win situation for animal charities and animal producers, and a win situation for consumers, who can  feel better about continuing to exploit animals. Only the animals lose. In the past thirty years, billions of dollars have been raised by animal charities as part of efforts to make the treatment of animals used for various purposes supposedly more “humane.” Animals are still being tortured; the primary effect of these campaigns has been to promote the fantasy that we can exploit animals in a benign way. Roger Scruton describes the life of grazing animals in Britain as involving being “well-fed, comfortable and protected, cared for when disease afflicts them and, after a quiet life among their natural companions, despatched in ways which human beings, if they are rational, must surely envy.”16 This view may reflect what Scruton has seen in paintings by Reynolds or Constable, but it is not reality. Jeff McMahan claims that “humane rearing, when practiced scrupulously, does not cause animals to suffer.”17 That is conjecture on his part as that sort of rearing has never existed, and certainly not on any commercial level, and, for reasons I have discussed, I do not believe it can exist under any circumstances.

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In any event, by making humans who care about animals feel more comfortable about continuing to exploit animals rather than focus them on the idea that any animal use reflects an acceptance that animals are just things that have no moral value, animal charities have, in effect, convinced the public that recognizing animals as having moral value is consistent with continuing to exploit animals. I believe that the “animal movement” thereby does a very great disservice to animals. Single-Issue Campaigns

Single-issue campaigns, which focus on a particular animal product or use, encourage the belief that some types of animal exploitation are morally more acceptable than others, and thereby perpetuate animal exploitation. Examples of single-issue campaigns include the anti-fur campaign, the anti-veal campaign, the anti–foie gras campaign, campaigns targeting the consumption of dogs in Asian countries, anti-hunting campaigns, and campaigns targeting kosher or halal slaughter. Fur is no worse than leather. Fur is the skin of an animal that has the fur or hair still attached. Leather has the fur or hair removed. Fur is no worse than wool. Sheep are subjected to all sorts of violent treatment, including shearing. Sheep are prey animals who are easily frightened. They resist being shorn and are clearly terrified during this process and even the most careful shearer will nick or cut the sheep in the process of shearing. And sheep used for wool do not die of old age; they are eventually slaughtered and consumed as meat. Neither veal nor foie gras is worse than steak. Eating dogs is no different from eating any other animals. Animals who are hunted and animals sold at the supermarket all died violent deaths. Kosher and halal slaughter, which involve the exsanguination of an unstunned animal, are brutal—just as is non-kosher/non-halal slaughter,

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particularly in light of the fact that animals who are supposedly stunned before they are shackled, hoisted, and cut are often not fully unconscious. Bullfights and rodeos are both brutal and no worse morally than eating animals. Single-issue campaigns, like animal welfare campaigns, encourage animal exploitation by explicitly or implicitly promoting the idea that some forms of animal use are worse than other forms and, by implication, the non-targeted uses are morally more acceptable. For example, in a campaign targeting kosher/halal slaughter, a large UK animal charity recommended that those concerned boycott businesses that sold meat from animals who were not stunned. This explicitly suggested that stunned meat is morally better. The veal boycott implicitly promotes the idea that meat from cows is morally better than meat from calves. Moreover, these campaigns often reflect, involve, and perpetuate discrimination against humans. The campaign against eating dogs encourages the idea that Asians are morally more reprehensible because some of them eat dogs; the anti-fur campaign has always had sexist and misogynist aspects. The campaign against kosher slaughter has always had anti-Semitic aspects just as the anti-halal campaign has Islamophobic aspects. It is clear why animal advocacy organizations promote such campaigns. It allows them to build large coalitions of people who themselves participate in animal exploitation but are then able to point a finger at other, often disfavored, humans who are the “real” abusers. In any event, we are unlikely to appreciate that species is an irrelevant criterion for excluding nonhumans from membership in the moral community as long as we do not see that using race, sex, sexual orientation, and so forth to exclude humans from the moral community or to treat them in unfair ways is similarly problematic.18 I have long maintained that I could view some single-issue campaigns in a more favorable light if they were explicitly and 140

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consistently presented as an incremental step leading toward the abolition of all animal exploitation (and if they did not involve some form of human discrimination). I have yet to see any singleissue campaign that does this. That is because they cannot do so as a financial matter. In order to be the fundraising devices they are intended to be, they need to keep the pool of possible donors as large as possible. These campaigns cannot take the position that all animal use is morally unacceptable because many members of the coalition (and donors to these charities) will not be vegans and will be engaged in various forms of animal exploitation. The point of these campaigns is to promote targeting others who are the culpable parties. Analogies to Civil Rights

Some argue that all social progress proceeds incrementally; measures that fall short of veganism are similar to measures that seek to make things better for humans but do not necessarily achieve the end goal of complete justice. It is argued, for example, that civil rights for humans proceed incrementally so we should promote veganism not as a present obligation but as a gradual matter. This analogy is inapposite. A civil rights campaign assumes that we are dealing with humans who are already persons and, as I discussed in chapter 4, the issue is whether those persons are being treated the same as other similarly situated persons. When we are talking about nonhuman animals, we are dealing with things that are not persons, and the “gradual” changes are offered not as steps to recognizing animal personhood, but as normatively desirable in themselves. That is, rights violations are proposed as normatively desirable. This is problematic if we take rights and personhood seriously. Moreover, we are not going to achieve nonhuman personhood incrementally through continued violations of the basic right to not be used as property any more than we achieved the end of 141

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chattel slavery by making slavery more “humane.” We have had animal welfare campaigns for a good long time now, and there is absolutely no evidence whatsoever that they are leading in the direction of abolishing animal exploitation. All of these incremental measures are based on the idea that the most effective way to bring about change for animals is by promoting “baby steps” that lead in the direction of reducing harm to animals. But these measures do not, for the most part, lead to a reduction in harm. If anything, they make people feel more comfortable about continuing to participate in animal exploitation. The “baby steps” lead nowhere but backward. If we take animals seriously—if we really believe that they are not things and that they have moral value—then we have no choice but to abandon “baby steps” in favor of a paradigm shift that reflects our acting on what we say we believe.19 I am often asked what form of activism I recommend for someone who shares the view that nonhuman animals are persons whose interests in not suffering and in continuing to live are morally significant. My answer: become a vegan yourself and then engage in creative, nonviolent education focused on veganism as a moral imperative.20 In our nonvegan world, the educational opportunities abound. For example, if the vegan meal we ordered comes sprinkled with cheese or eggs (or other animal products, which are all morally indistinguishable), we should ignore Singer’s advice and not consume it. We should take the opportunity to explain to our nonvegan companions why we take the matter as seriously as we do. Some of the most interesting— and productive—discussions about veganism I have ever had occurred in exactly that context. If we eat the meal, we not only participate in animal exploitation, we convey the message that we don’t take the moral value of animals seriously. It’s not a matter of “purity”; it is not a matter of being “fanatical”; it is a matter of simple consistency in observing moral principles that concern fundamental matters. 142

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Radical or Radically Conventional?

The position that I am advocating may seem radical but in one important sense it is not only not radical but accords with a rational interpretation of our conventional thinking. We saw in chapter 4 that you don’t have to be a rights advocate to come to the conclusion that property status for animals is a problem. Even a utilitarian, who rejects moral rights, would have to come to pretty much the same conclusion. That is, if animals are property, their interests will usually be discounted or ignored. It will be difficult—if not impossible—to apply the principle of equal consideration if on one side of the balance you have property and on the other side you have a person with property rights. And that is the context in which our supposed conflicts with animals occur. But let’s put rights theory, utilitarianism, and personhood theory aside and let’s just focus on what we think as a matter of  conventional wisdom without any further philosophical embellishment. Most of us already think of animals as having some moral value. We may not think of animals as persons, or as equal to human persons, but we do think that they have a morally significant interest in not suffering. Most of us think that it is morally wrong to impose unnecessary suffering on animals. That is completely uncontroversial. But what does that mean? What must it mean if we want it to be a coherent, sensible moral principle? Because animals are property, we do not question whether particular uses of animals are necessary because those uses are necessary as incidental to the exercise of property rights. Because animals are property, necessity is understood as that which is required to use animals for a particular purpose. Once we remove property rights from the analysis, we can see that the prohibition against unnecessary suffering is meaningless if it does not reject unnecessary uses and focuses only on unnecessary treatment 143

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incidental to unnecessary uses. That is, if animals are chattel property, we focus only on gratuitous suffering imposed in the context of property uses that may be unnecessary except as an exercise of property rights to use animals. And 99 percent of our animal use cannot plausibly be described as necessary. Moral problems assume some sort of conflict of interests. Morality seeks to resolve that conflict. But, in the overwhelming number of cases in which we use animals, there is no conflict between humans and animals. There is conflict only between property owners and the property they seek to exploit. That is a real conflict but it is only real because animals have the status of chattel property. Once we stop thinking of animals as property, there is no conflict. That is, there is no conflict between the human and the cow that the human wants to eat. There is no need for the human to eat the cow. The eating of the cow is wholly unnecessary. This belief—that it is wrong to inflict unnecessary suffering on animals—should itself lead us to the conclusion that we should stop virtually all of our uses of animals even if we reject the personhood of nonhuman animals. If necessity has any meaning in this context, it must mean that we cannot justify inflicting suffering on animals for reasons of pleasure, amusement, or convenience. Our numerically most significant use of animals is for food. Until recently, it has been accepted in many parts of the world— and especially the West—that eating animals was necessary for optimal health. We now know that we do not need to consume animals in order to be healthy.21 Indeed, many mainstream health professionals are claiming that we can be more healthy if we adopt a plant-based diet. But whether we will be more healthy is not the point; the point is only that we won’t be less healthy without animal products. Eating animals is simply not necessary. The best justification we have for inflicting suffering and

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death on animals is that we think that they taste good; we derive pleasure from eating them. Eating animals and animal products is also a tradition—we have been doing it for a long time. How is palate pleasure any different from the pleasure that some people derive from participating in various blood sports to which most people object? Fox hunting, badger baiting, and dog fighting are all traditions. Indeed, almost every practice to which we object—whether involving animals or humans—involves a tradition valued by someone.22 Patriarchy is a tradition that has existed for a very, very long time. But the fact that something has been happening for a long time says nothing about its moral status. And if it is not necessary to consume animal products, then we cannot justify imposing any amount of suffering on animals used for food. Similarly, there is no necessity to use animals for clothing, entertainment, or sport. Our only use of animals that is even arguably not transparently frivolous involves vivisection, or using animals in biomedical experiments/contexts to cure serious human illnesses. So even without personhood and the right of animals not to be property, and even if we bought into the anthropocentric fantasy that animals are “inferior” to humans and that we should always prefer humans over nonhumans in any situation of real conflict, we would, if we believed animals had some moral value, still all be vegans and the only issue we would be discussing would be whether we could justify using animals for experiments.23 As a rights advocate who believes that all sentient nonhumans are persons, I reject all vivisection.24 Even if it is necessary to use animals to get experimental data or some other claimed “benefit”—and I think any claim of necessity is itself suspect for a variety of reasons—I maintain that, as a matter of the right of animals not to be used exclusively as resources, none of those supposed “benefits” can be justified morally. We could increase the

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speed and the depth of our scientific progress if we used humans in biomedical experiments. We do not do that (at least where there is not informed consent) because we believe that it is wrong to treat any person in a way that reduces them to the status of being a thing. The same analysis holds for nonhumans. I should add that, even if we adopt a religious framework, the analysis should be the same. That is, even if animals are our spiritual inferiors because we and not they are made in the image of God, that could mean only at most that in a situation in which there is a genuine need to choose, we have the obligation to choose the human over the nonhuman. The supposed spiritual inferiority of animals surely does not put a divine stamp of approval on the imposition of gratuitous harm. In any event, although I think that we should recognize that our belief that it is wrong to inflict unnecessary suffering on animals should lead us—once we remove property from the equation—to reject all animal use with the possible exception of some vivisection, I also recognize that it is unlikely that we are ever going to consider applying necessity in that way without being convinced of the argument for animal personhood and the concomitant argument for the right not to be property. My point is that the conclusion that we reach in light of the personhood/right position is not all that much different from the one we should reach without it if we did not allow our moral thinking about necessity to be perverted by the status of animals as property. Drawing Lines: Who Is Sentient? And Plants.

I have argued that sentient nonhumans are persons and have a right not to be used exclusively as resources, as property. I have also maintained that most of the animals we routinely exploit are unquestionably sentient. It may be difficult to know where to draw the line between sentient beings and beings that are not sentient. But there are always line-drawing problems involved 146

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when concepts are used. Some philosophers spend large portions of their careers focused on where to draw lines in using particular concepts. As admirable as that activity may be, it is also the case that the inability to draw lines clearly does not stop us from applying those concepts in their clear and uncontroversial instances. There is some controversy about whether crustaceans (lobsters and crabs), some mollusks (clams and oysters), and insects are sentient. There is evidence that goes in both directions. The behavior of crabs and lobsters when put in boiling water is certainly disconcerting to watch. In any event, because there is much at stake (for the crustaceans and mollusks) if I am wrong, I err in favor of their being sentient and do not consume them. There is, however, no need to worry about line-drawing when we are talking about the overwhelming portion of the animals we routinely exploit: cows, chickens, pigs, turkeys, geese, sheep, deer, fish, mice, rats, and so on are unquestionably sentient. The fact that we may not be sure about the oysters, clams, crustaceans, and insects should not prohibit us from thinking about and acting with respect to the animals whose sentience we have no reason to question. And once we agree that a being is conscious at all, then, as I argued in chapter 3, we cannot deny that killing the being causes harm to the being, irrespective of how supposedly “humanely” we have treated and killed the being. “Yes,” you say, “but what about plants?” Plants are not sentient. There is nothing that it is like to be a plant. Plants are unquestionably alive but so are bacteria, cells, and all sorts of other things. Plants have evolved to have all sorts of complex processes and to interact with their environment in all sorts of ways. They have no interests; there is no evidence that plants have any sort of mind that prefers, desires, or wants anything. When we say that a plant “needs” or “wants” water, we are no more making a statement about the mental status of the plant than we are when we say that a car engine “needs” or “wants” 147

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oil. A plant may react to sunlight and other stimuli but that does not mean the plant is sentient. If you run an electrical current through a wire attached to a bell, the bell rings. But that does not mean that the bell is sentient. Plants do not have nervous systems, benzodiazepine receptors, or any of the characteristics that we identify with sentience. And this all makes scientific sense. Why would plants evolve the ability to be sentient (as opposed to just reacting to stimuli); what value would sentience serve? If you touch a flame to a plant, the plant cannot run away; it stays right where it is and burns. If you touch a flame to a dog, the dog does exactly what you would do—cries in pain and tries to get away from the flame. The plant will turn toward the sun even if a lawn mower is going to cut the plant into bits; the dog runs away from an approaching lawn mower. Sentience is a characteristic that has evolved in certain beings to enable them to survive by escaping from a noxious stimulus. Having a mind and an experiential welfare would serve no purpose for a plant. In any event, to those who worry about plants, my advice is simple: we know that the nonhumans we routinely exploit are sentient. We have no doubt of that. Indeed, no one has (to my knowledge) ever argued that we should apply anticruelty laws to plants. There is a good reason for this: no one ever takes seriously the claim that plants are sentient except when they feel that their nonveganism is being challenged and they have already exhausted the retort that Hitler was a vegetarian (he wasn’t) and they have nothing else to say.25 If it turns out that plants are sentient, we would still be obligated to eat plants rather than animals because it takes many pounds of plants to produce a pound of meat. For example, it takes about twelve pounds of grain to produce one pound of feedlot beef and about three pounds to produce a gallon of milk. So if you are worried about plants, you should eat plants and not animals because if you eat animal products, you consume more plants. The only alternative is not to eat anything. 148

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Three Unsuccessful Objections to the Position That Veganism Is a Moral Imperative

In this section, I am going to explore three common objections to my view that veganism is a moral imperative.26 No One/Nothing Is Really Vegan

There is a group of objections that share in common the idea that, even if we think that nonhumans are moral persons, we cannot avoid all harm to animals or coming into contact with animal products so it makes no sense to say veganism is a moral imperative. We cannot be the subject of a moral imperative that we cannot satisfy. There are different variants of this objection. We will consider several. An example frequently offered is that, even if we stop eating animals, we will still kill animals incidentally and unintentionally when crops are harvested, and, therefore, veganism is impossible and continuing to eat animals is morally indistinguishable from eating plants. This objection is unsuccessful. Consider the following: If we build a highway and there is a 60 mph speed limit, we know (an actuary can tell us with some precision) that some number of humans will be killed on that road in the next year as a result of accidents. Does that mean that, because we cannot protect humans, who have rights, from harm as a result of accidents, building a road and deliberately killing those humans are indistinguishable, and we can make no sense of prohibiting the latter? Human activity, such as building roads, driving on roads, making and consuming products, and so forth will necessarily cause some unintended harm to other humans. We should, of course, always endeavor to act carefully so as to minimize harm but the fact that harm is incidental or unintended does not mean that it’s morally acceptable to treat humans exclusively as means 149

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to ends, which is what we do when we murder them. When humans are harmed incidentally or accidentally—even if that harm is inevitable (there will always be road and manufacturing accidents)—they are not being treated exclusively as means to ends. The exact analysis applies in the nonhuman context. When we recognize that animals have a right not to be used as property, we reject treating them exclusively as means to ends. We recognize that we cannot justify imposing any suffering or death on them incidental to their use as resources. We stop our institutionalized exploitation of them. If we recognized this right, we would stop bringing domesticated animals into existence. We should obviously try not to harm animals unintentionally, but completely eliminating harm will be impossible when, for example, we harvest crops. We should stop using pesticides, which are harmful to nonhumans, humans, and the environment. We should use agricultural methods that are more safe for animals who live in the field. But however careful we are, some animals will be harmed and just as in the case of humans, unintended and accidental harm does not justify deliberately treating animals exclusively as means to ends. I should reiterate in this context that, if we stop eating animal foods and eat only plants, there will be fewer acres under cultivation because we won’t be using many pounds of plants to produce one pound of animal protein, and there will be fewer nonhuman animals unintentionally killed in the process of cultivating crops. A variant of the preceding argument is that, if insects are sentient, then none of us can be vegan because we all necessarily kill insects in our daily activities. This argument misses the point that the right not to be used as property is just that. It is a right that protects animals against being commodified and exploited. It  protects sentient beings from any suffering or death that is incidental to using them as things. It does not protect them from all harm any more than human rights protect humans 150

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from unintentional or incidental injury or death. I do not know whether insects are sentient. In light of what is at stake if it turns out that insects are sentient, I err in their favor in light of the evidence that they may be sentient, and I would not be in favor of using insects as food, as some propose. That would involve commodifying sentient beings and exploiting them as things. I do not eat honey because it involves our using bees as our property to make something that we consume or sell. If bees are sentient, it cannot be disputed that they are harmed by the process of making honey. The most careful beekeeper ends up injuring and killing bees in the process of removing honey and many bees die when they sting the keepers. Honey farmers often clip the wings of the queen bee to stop her from leaving the hive and starting a new colony elsewhere, as that will result in there being less honey to sell. Farmers will often destroy the hive at the end of the season to avoid the cost of feeding the bees during the winter. The bees make the honey to consume themselves. Taking it from them as part of a process where we use them as our property, and killing them or feeding them a sugar-type substitute, is not morally justifiable. This does not mean, however, that I cannot be a vegan because I may unintentionally injure or kill a bee when I am walking or driving any more than I cannot be a vegan if I eat a head of lettuce the farming of which involved unintended or incidental harm to an animal during harvesting. I try to avoid killing and injuring insects when I walk. But I accept that I do unintentionally and incidentally kill insects. That is, however, different from engaging in the institutionalized exploitation of the bees through honey production or the production of insects to serve as an alternative protein source. There is a difference between unintentionally and incidentally injuring a sentient being and deliberately injuring that being as part of our use of that being as property. Another member of this set of arguments maintains that, even if a product does not contain animal ingredients, if the product 151

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is produced by a company that otherwise engages in animal exploitation, those who consume the product can’t really be vegans. For example, several years ago, a company that makes plant-based cheese substitutes was acquired by a pharmaceutical company that did animal testing. Although the ingredients in the cheese substitute did not change and remained entirely plant-based, some claimed that those who consumed the cheese substitute from the acquired company were not really vegan because they were participating in animal exploitation. I disagree. To say that the cheese substitute is no longer suitable to consume as vegan because the company that makes the cheese substitute tests on animals is no different from saying that a package of frozen broccoli isn’t suitable for a vegan to consume because it is produced by a company that also makes meat/dairy/ egg products. It is no different from saying that the vegetables you just bought at the farm market are not suitable for vegans because the farmer is not a vegan and will use the money you paid for your vegetables to buy animal products. There is no difference between animal testing and any other form of animal exploitation. It’s all morally unjustifiable. But the fact that a company that produces the product also does animal testing does not mean that a person who consumes the product is not a vegan. If the company did not do animal testing and, instead, served animal products to its employees in its cafeteria, it would present the same problem. Where did people buy the cheese substitute before the acquisition by the testing company? They bought them from a supermarket that sells all sorts of animal products, or from a specialty store that sells supposedly higher-welfare animal products. If the cheese substitute was previously acceptable for vegans even though it was sold by such stores, the fact that the product is manufactured by a company that tests on animals should not matter. And even in the highly unlikely event that the store in which they bought the cheese substitute was exclusively vegan and the owners and employees were all vegan, the product was 152

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probably transported by people who most certainly were not all vegan. What determines whether a product is suitable for a vegan to consume is what is in it. The moment you go beyond that, you rule out anything and everything that you do not make yourself using things that only you produce and where you have obtained no input from any other source. Once you get away from what’s in the product, given the pervasiveness of animal use and the fact that all money is dirty, there can be no limiting principle. But the same argument can be made where human rights are involved. Some promote “cultured” or “clean” meat that involves producing meat from animal cells. This requires taking cells from live animals and some producers culture the cells in a medium made from fetal calf blood (although there are claims that the latter is being phased out). In any event, cultured meat involves the institutionalized exploitation of animals, and it perpetuates the idea that animals are food. Moreover, cultured meat will likely not replace traditional meat; it will just supplement the supply given that projected increased demand for meat will exceed the capacity to raise whole animals. I am all in favor of vocal opposition to animal testing as part of opposition to all animal use. But a vegan product does not cease to be suitable for vegans because there is animal exploitation involved incidental to the production/distribution process. On that level, there is animal exploitation involved in everything. There may be other good reasons to not consume particular products that have no animal ingredients. I don’t eat dark chocolate or cashew nuts if they are not fair trade because, although they have no animal ingredients, they involve human exploitation. To lead a moral life, it is not enough to be a vegan. What about if animals are used as an integral part of the production process so that we get close to having animals “in” the product and we approximate direct participation in animal exploitation? For example, much almond production involves the 153

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use of migratory bees, where the hives are brought into the area to pollinate the almonds. If bees are sentient, this raises a moral issue. If one cannot get ethically sourced almonds that do not involve the use of migratory bees, one should forgo almonds. As the vegan movement grows, producers will most certainly enter the market to meet the demand for almonds and other plant foods that do not involve institutionalized animal exploitation. It should be noted that migratory bees are also used for monoculture involving soybeans and corn, but those crops are produced in the quantities that they are to feed to animals that humans will eat. In a vegan world, that sort of monoculture would not exist. Finally, some argue that promoting veganism as a moral imperative makes no sense because of the presence of animal ingredients in just about everything with which we come in contact. I mentioned earlier that, because we kill so many animals and animal products are so cheaply and readily available, they are contained in all sorts of materials, from the plastics in our cell phones to the tires on our cars to road surfaces. We simply cannot avoid all animal products. We can, however, choose what we eat, wear, use on our bodies, and so on. And as more of us become vegan, the slaughterhouse by-products that are cheaply available will become less cheap and less available and nonanimal alternatives will replace them. Animal manure is often used to raise the plant foods that vegans eat, as are bone meal, feathers, and other by-products. Again, these items are used because they are cheap. There is a growing veganic movement that is producing food without the use of animal manure and by-products, and as more of us become vegan these sorts of efforts will prosper and agriculture will stop using animal byproducts just as will plastics manufacturers. As a general matter, all “nobody is really vegan” and “nothing is really vegan” arguments—whatever particular form they take—are the same in that they all maintain that, because we cannot live a perfect vegan life, we cannot have a moral obligation to 154

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be vegan. I agree that we live in an imperfect world and that we cannot eliminate all harm to animals. We also live in a world in which our existence has an incidental and unintended adverse effect on other humans. We can just do the best that we can do. But the best we can do with respect to animals includes at least removing from our lives all of the exploitation that results from direct participation in the institutionalized exploitation of animals. That is, doing our best includes at least not eating, wearing, or otherwise using animal products whenever we have a choice, which, if we are not on the infamous desert island, we usually do. Veganism is the moral baseline. Moreover, as more of us stop eating, wearing, and using animal products, most of the problems identified by these arguments, which are generated by the fact that we consume and use animals in the first place, will dissipate. Eating Animal Products Is Natural

A common response to the argument that veganism is a moral imperative is to claim that it is “natural” to consume animal products and we cannot have a moral obligation to do what is “unnatural.” Arguments that some practice is good because it is “natural,” or bad because it is not, should always be viewed with suspicion because “natural” is often used as a synonym for “good” and these arguments are really nothing more than attempts to characterize what is in question rather than to present a sound argument for why what is in question is morally acceptable or not acceptable. In this case, when someone argues that eating animal products is “natural,” what they usually mean to say is that nature “intended” us to consume animal products and, therefore, we ought to do so because to not do so means that we are behaving in an “unnatural” way. The intent of nature is demonstrated by the fact that humans are supposedly physically adapted to eat meat and other animal products. 155

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Putting aside that many people are lactose intolerant, and that many physicians are pointing out that animal products are detrimental to human health, the most we can say is that we can eat animal products. But the reality is that human bodies compare physically much more to herbivores than to carnivores. Carnivores have well-developed claws. We don’t have claws. We also lack the sharp front teeth carnivorous animals need. Although we still have canine teeth, they are not sharp and cannot be used in the way carnivorous animals use their sharp canine teeth. We have flat molar teeth, as seen in herbivores, which we use for grinding. Carnivores have a short intestinal tract so that they can quickly expel decaying meat. Herbivores have a much longer intestinal tract, as do humans. Herbivores and humans have weak stomach acid relative to carnivores. Herbivorous animals have well-developed salivary glands for predigesting fruits and grains and have alkaline saliva that is needed to predigest grains, as do humans. Carnivorous animals do not have similar salivary glands and have acidic saliva. We are told that by advocates of the Paleolithic diet that we should eat the way our “ancestors” ate. But how did they eat? As the biologist Rob Dunn wrote in Scientific American: [F]or most of the last twenty million years of the evolution of our bodies, through most of the big changes, we were eating fruit, nuts, leaves and the occasional bit of insect, frog, bird or mouse. While some of us might do well with milk, some might do better than others with starch and some might do better or worse with alcohol, we all have the basic machinery to get fruity or nutty without trouble.27

As I mentioned earlier, we do not need to eat animal products to lead healthy lives. Vegans must make sure to get vitamin B-12, which humans do not manufacture, or at least not in reliable 156

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quantities. But all humans have to get B-12 from some exogenous source. Carnivores get it from meat; vegans get it from nutritional yeast, other fortified food, or supplements, and there have been claims that water lentils contain a bioactive form of B12. Humans also need fatty acids that they don’t manufacture. Most people get their essential fatty acids from eating fish. The fish get it from consuming algae. Vegans get these fatty acids directly from an algae supplement, or from flaxseeds and walnuts, which provide these nutrients. Veganism Cannot Be a Moral Imperative Unless We Were Vegan from Birth

An often-heard objection is that one cannot take the position that veganism is a moral imperative unless one has been a vegan from birth. If one has not been a lifelong vegan, then one cannot claim that the nonveganism of others is morally objectionable. This objection makes no sense as we can see with a simple analogy. Imagine that John was raised in a racist home and accepted the beliefs he was taught. John was a racist for many years. John came to see that racism was morally odious and he renounced his racist beliefs. Is John now estopped from claiming that the racism of others is morally wrong because John used to be a racist? The idea that John cannot call for the end of all racism is absurd. The same analysis applies where animals are involved. If we come to see that animal use cannot be justified, the idea that we cannot maintain that veganism is a moral imperative makes no more sense than saying that someone who was once a racist cannot take the position that racism is wrong. The only relevance of the fact that one was not always a vegan is that, in seeking to educate others, one ought to understand that one once had the perspective one is trying to change, and one’s educational efforts should be informed by that understanding. 157

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A related objection to taking the position that veganism is a moral imperative is that it represents a moral judgment about others and constitutes “shaming.” This can mean one of two things. It can mean that when someone promotes veganism as a moral imperative, they are expressing a negative view about the moral character of those who are not vegans. This is where my previous comments are applicable. We need to understand that  animal exploitation is an activity in which almost everyone—including those of us who are not lifelong vegans— participates. We need to approach vegan advocacy and education patiently, and in creative and nonviolent ways that reflect that understanding. We need to make clear that we are criticizing a practice that most of us have accepted uncritically as legitimate but that is not legitimate and is, indeed, immoral and unjust, and that we are not making judgments about individual character. Alternatively, this objection can mean that to criticize the practice of animal exploitation as immoral and unjust involves making a judgment about a practice that one should not make because morality is a matter of personal opinion. Unfortunately, there are some people who seem to embrace this relativism but it is just that—relativism. If someone promotes relativism in morality as a general matter, there is not much more to say. What About the Desert Island?

If we accept that animals are persons, do we have a moral obligation not to kill and eat an animal if we are stranded on a desert island and will die if we don’t do so? Virtually no one will ever be in such a situation, and unless the animal we are going to eat is an exclusive carnivore, there must be something of a plant source to eat on the island. But let’s play anyway. Veganism means that we avoid animal exploitation to the extent practicable. The desert island situation would seem to fall into the “impracticable” category: if we were 158

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to find ourselves in such a situation, we might have to make choices that the vast majority of humans are never required to make. That said, I do not mean to suggest that killing and eating the desert island animal in order to avoid starvation would be morally justifiable. It would not be. At most, it would be morally excusable. That is, it would still be morally wrong—so it would not be justifiable—but its wrongness would be mitigated by the compelling nature of the situation. It would be similar to a claim for exculpation from criminal liability because one acted under duress. For example, if someone comes up to me on the street and puts a gun to my child’s head and threatens to kill my child unless I go into a store, rob the store, and give the money that I take to the person threatening my child, I can claim duress if I am prosecuted for robbery. I did something wrong—my act of robbery was not justified—but I acted under compulsion and my culpability is thereby mitigated. There have been instances in which humans in extreme situations have killed and eaten other humans. No one thinks that it is morally acceptable to do that; but we do recognize that the situations of compulsion may mitigate the wrongness of the act. The reasoning is the same where nonhumans are involved. There is a tendency to think that, if we would choose to favor a human over the nonhuman when stranded on a desert island or in a lifeboat, or when both are trapped in a burning building and we can only save one, this proves that animals count for less and that we can use animals exclusively as resources. It proves no such thing. Consider that there are all sorts of situations in which we might choose to save one human person over another. For example, in the situation involving the burning house, I might choose to save a younger human over a very old human. That would not necessarily mean that I thought that the older human had less value. It could mean (and in my view would mean) that, faced with a situation in which I cannot do what I 159

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want to do (i.e., save both), I choose to save the human who has their life ahead of them. Similarly, when faced with choosing between a human and a dog in a burning building, I might choose to save the human simply because I know that death is a harm to both, but, as a human, I think I understand better what is at stake for the human. That is, my saving the human represents an epistemological limitation on my part, not a judgment that the dog has lesser moral value. In any event, these sorts of hypotheticals do not necessarily show that, when faced with a conflict, the being we do not choose to save counts for less morally. That is the problem of Tom Regan’s claim that, in situations of real conflict, we must choose to save the human over the dog (or a million dogs) because the former has greater opportunities for satisfaction of interests than any number of the latter. What Regan is saying here is that the content of human minds is more morally significant than the content of nonhuman minds and that in situations in which exigencies require that we choose, we must choose the human over the nonhuman(s). I disagree with this. If I chose to save the human over the dog, it would not be because I think that the content of the dog’s mind is morally less significant. To the extent that my choice represented anything other than whom I reached first, it would be, as I stated earlier, based on my own limitation in not understanding what is at stake for the dog. If we are obligated to choose the human person over the nonhuman person, as Regan maintains, then, as I discussed earlier, it would appear that we would have a basis for distinguishing between humans and nonhumans for the purpose of not recognizing inherent value on an equal basis, which threatens to undermine Regan’s theory. In any event, just as our saving the young human over the old human does not necessarily mean that we think that older humans have less moral value than younger humans or that it is morally acceptable to use old humans as forced organ donors, choosing 160

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the human over the dog in a burning building does not mean that we can justify using animals exclusively as resources. These sorts of hypotheticals do show that desert islands, lifeboats, and burning buildings are bad places to formulate moral principles. And the fact that we would choose the human over the nonhuman in a situation of conflict would certainly not allow us to create the conflict in the first place. That is, by treating animals as property, we create a conflict between humans, who are property owners, and property. We, in effect, drag the animals into the burning house and then ask whom we should save. The answer was foreordained by our decision that animals are just things and not persons. If we recognize that animals are persons, we must stop dragging them into the burning house in the first place. As I mentioned earlier, we don’t even need a rights perspective to see this point about our creation of conflicts. A Note About Domestication

I have mentioned at several points that, if animals have moral value, we should stop using them as resources and stop bringing domesticated animals into existence. In this regard, I follow Leslie  J. Cross, who argued that emancipating animals required the end of domestication. A full treatment of the issue of domestication goes beyond the scope of this book, but I wanted to make a few comments about why I think domestication is problematic.28 Domestication represents the ultimate expression of anthropocentrism and entitlement in that we have through selective breeding and other manipulation created animals who are completely and perpetually dependent on us and have no independence whatsoever. We have bred them to be resources and to have those qualities that facilitate their use as resources. Domestic animals are dependent on us for when and whether they eat 161

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or have water, where and when they relieve themselves, when they sleep, whether they get any exercise, and so on. Unlike human children, who, except in unusual cases, will become independent and functioning members of human society, domestic animals are neither part of the nonhuman world nor fully part of our world. They remain forever in a netherworld of vulnerability, dependent on us for everything that is of relevance to them. We may make some of them—our nonhuman companions— happy in one sense, but the relationship is made possible because of an institution that is inherently problematic. They do not belong stuck in our world, irrespective of how well we treat them. As I discussed earlier, some humans accord a high value to their animal property; many do not. If you are reading this book and live with companion animals, it’s almost certainly the case that you are one of the owners of animal property who accord a high value to your animal property. You are in the minority. These observations are more or less true of all domesticated nonhumans. They are perpetually dependent on us. We have to control their lives because, as domesticated animals, they are beings whom we have selectively bred to require our control. Moreover, we often select for characteristics that are positively harmful to animals. For example, certain dogs and cats are bred to have an appearance that adversely affects their health and inbreeding generally results in inheritable diseases and disorders. Various animals exploited for food are bred to have certain characteristics that cause them to gain weight quickly, and they will continue to gain that weight if they are not killed. Think about the matter in a human context. Would we think it morally acceptable to deliberately bring into existence humans who are perpetually vulnerable to serve us in various ways? This is not an unrealistic thought experiment. We are on the brink of being able to do all sorts of things in the laboratory. It will be possible to bring into existence humans who have all sorts of 162

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cognitive and physical traits and who do not have families that care about them. If it is acceptable to bring perpetually dependent animals into existence so that they can provide companionship and whatever other benefits we want, why is it not acceptable to bring into existence perpetually dependent humans who serve as companions or do some tasks around the house, or engage in work that we regard as too hazardous for the rest of us? My guess is that most of us would reject this absolutely. This is not to say that we see humans who have disabilities and are dependent on other humans as not having inherent value. On the contrary. As I discussed in chapter  3, all moral agents and patients (human or nonhuman) are equal in that they have the right not to be used exclusively as resources. It is, however, wrong to analogize domesticated nonhumans to dependent humans.29 The dependence of vulnerable humans on other humans occurs in a context that reflects social decisions to care for more vulnerable members of society who are bound together and protected by the complex aspects of a social contract. And the nature of human dependence does not strip the dependent human of core rights that can be vindicated if the dependence becomes harmful. We put many resources into trying to prevent human dependency arising from disability. We put many resources into helping humans who are dependent to be as independent as possible or as independent as they wish. The fact that we seek to prevent this sort of complete dependency and to enable independence does not mean that we value dependent humans less; it does mean, however, that we do not see dependency as inherently valuable in the human context, as we are necessarily committed to do where nonhumans are involved. The entire point of domestication is to produce beings who are servile and whom we can control. That servility and inability to care for themselves are precisely what we value. That is morally objectionable in my view. 163

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I am often asked about how I can say that animals have rights if I don’t recognize a right to reproduce. This issue usually comes up in the context of my claim that, if we are able to do so, we ought to adopt domesticated animals (of any species) who need a home, but we should ensure that they do not reproduce. To ask why I do not recognize a right to reproduce is to indicate a failure to understand my position. I am not saying that animals have the same rights as humans do; I am saying that animals have one right: the right not to be things; the right to be persons. If animals have a right of reproduction, then we would be morally committed to allowing all domesticated species to continue to reproduce indefinitely. We cannot limit any right of reproduction to dogs or cats or any other species that we happen to fetishize. Moreover, it makes no sense to say that, even if we agree that domestication is morally wrong and that we have acted immorally in domesticating nonhuman animals, we are now committed to allowing them to continue to breed. As you know by now, my partner and I live with dogs. They are all rescued and most have previously been victims of cruelty. We both adore our nonhuman companions; but if there were only two dogs living in the world and it were up to us as to whether they continued to breed so that we could have pets, our answer would be a clear and unqualified “no.” We regard our nonhuman companions as nonhuman refugees. The entire institution is wrong. The philosopher David Benatar argues that humans should, out of compassion, stop procreating because life is painful even for those who have the best lives.30 Whatever one thinks about this position as it applies to human beings, it certainly applies to nonhumans because all domesticated animals are brought into a world in which they cannot fit. In sum, if animals are persons and have a morally significant interest in their lives, then our institutionalized exploitation of animals, which assumes that animals are things and are not 164

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persons, cannot be defended. We have an obligation to support the abolition of animal use and to stop participating directly in animal exploitation in our own lives. If animals matter morally, veganism is a moral imperative. And that brings us to the point that I made in the introduction. It is not veganism that is extreme; what is extreme is embracing the idea that animals matter morally and not being vegan. A general conclusion follows.

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THIS BOOK WAS NOT MEANT to convince those who do not care at all about animals—who think that they are just things to which we can have no moral obligations—that they are wrong and that animals have moral value. It was meant to convince the very many people who do care about animals, and who do think that they have moral value and are not things, that the moral value of nonhumans is inconsistent with our imposing any suffering or death on them incidental to using them exclusively as resources. If we agree that animals matter morally, we are committed to stopping our direct participation in institutionalized animal exploitation. Veganism is a moral imperative. Our conventional thinking—the default position on animals that most of us embrace—is that animals are not things. They have morally significant interests in not suffering. We recognize that we have a moral obligation, which is supported by law, to treat animals “humanely” and to not impose “unnecessary” suffering on them. But our conventional wisdom also says that nonhuman animals are not persons. They are sentient. They are subjectively aware. But they do not have a morally significant interest in their lives. They cannot think of themselves in the future so they cannot have any preferences about their future

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existence. They don’t care that we use and kill them; they care only about how we treat them. They are our property; we can use and kill them as long as we take seriously their interests in not suffering. So animals aren’t persons but they are not things either. They are quasi-persons. We saw, however, that there were two significant problems with this arrangement. First, because animals are chattel property, the standard of animal welfare is very low. We protect animal interests more or less only to the extent that it makes economic sense for us to do so. For the most part, we look to the norms and customary practices of those involved in an animal use and defer to their judgments about what makes economic sense. Yes, in theory, we could accord a greater level of protection to animal interests, but, as a practical matter, whatever level of protection we accord will always be low. And the status of animals as property makes according equal consideration to their interests—that is, assessing their interests without discounting on account of species— extremely difficult, if not impossible. Animal interests will always be accorded less weight because animals are property. Second, our denial of personhood status to animals based on their supposedly not having an interest in continuing to live is a breathtaking example of how, if our self-interest is at stake, we can believe something that, if we think about it for a minute, is literally absurd. Where humans are involved, we recognize that being subjectively aware itself provides the link to a future self—the self in the next second of consciousness. We don’t require that they have a particular conceptual framework that involves their being able to contemplate the future in abstract terms in order to have an interest in continuing to live. This is why we see no morally relevant difference between a human with late-stage dementia who has no ability to remember the past or plan for the future beyond the next second of consciousness and one who can remember the past and plan for the future but whose ability to do so is very limited. It would be completely arbitrary 167

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to say that one is a person and one is not. We treat both as persons because both have an interest in and value their lives, however they think about and value their lives. We do not treat them as if they were persons; we treat them as persons. We do not say that it is acceptable to use them exclusively as resources and to kill them as long as we treat them “humanely”; we say that it is wrong to use them exclusively as resources at all. We do not require that, in order to be persons, humans have to be faint versions of normally functioning humans. There is no reason—other than our anthropocentrism and the overpowering sense of entitlement that it facilitates—to deny personhood to nonhumans who are subjectively aware. Their lives consist of their continued consciousness, which connects them to their future selves. The only fair way to deal with the matter of nonhuman personhood is to recognize that the issue is resolved not by whether a being has a mind that is similar to the mind of a normally functioning human, but by whether the being has a mind. A mind that is subjectively aware is necessary to have interests; if a being has no interests, we cannot harm that being. But a mind that is subjectively aware is also sufficient to have an interest in continuing to live. Of all conscious beings—human and nonhuman—we can say that, despite any differences in the nature of their consciousness, there is something it is like to be a conscious being and that necessarily involves being connected to the next second of consciousness, and the next second after that, and so forth. We would find it heinous if anyone proposed that we used merely conscious humans exclusively as resources but we accept without question that it is acceptable to so use merely consciousness nonhumans. That differential treatment cannot be justified. We may not know where the precise line is between those nonhumans who are conscious and those who are not, but we know without question that all of the mammals and birds we 168

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exploit are sentient. And we know that fish and amphibians—all vertebrates—are sentient. We may not and may never be able to understand what their consciousness is like, but we know that they are conscious. There is controversy as to whether other animals, such as noncephalopod mollusks or crustaceans, are sentient. In cases where we are not sure, we should, as we do in the case of humans, err in favor of treating those beings as sentient, as there is much at stake if we are wrong in thinking that these animals lack phenomenal consciousness. If animals have moral value, they must have one right—the right not to be property. If they do not have this one right, their interests in not suffering will be devalued or ignored. Their interest in their lives will be ignored. Recognizing the right of animals not to be property does not protect nonhuman animals from all suffering and death any more than the right of humans not to be property protects them from all suffering and death. But in both cases, the right protects the rightholders from all suffering incidental to use exclusively as a resource. If we agree that animals matter morally, then we can no longer justify using them however supposedly “humanely” we treat and kill them. Focusing on whether treatment is “humane” misses the point. It’s not a matter of whether animal products are produced on factory farms or family farms. If we agree that animals matter morally, we can no longer justify the institutionalized exploitation of animals as a societal matter and we have an obligation as individuals not to participate in the use of animals, however they are treated. We are committed to veganism—not eating, wearing, or otherwise using animals— as a matter of fundamental fairness. Although this appears to be a radical conclusion, our conventional wisdom is that we should not inflict “unnecessary” suffering on animals. A coherent interpretation of this principle— one that did not assume the legitimacy of the status of animals as property—would militate against most, if not substantially all, animal use even 169

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in the absence of personhood or rights considerations. The fact that we subject animals to any suffering incidental to uses that cannot plausibly be characterized as necessary is compelling proof that, despite what we think about animals being quasipersons, they are nothing but things. Our moral “conflicts” with animals are mostly of our own doing. We bring billions of sentient animals into the world in order to kill them for reasons that are often trivial. We then seek to understand the nature of our moral obligations to these animals. But by bringing these animals into existence for reasons that we would never consider appropriate for humans, we have already decided that animals are outside the scope of our moral community altogether. Accepting that animals have this one right not to be property does not entail letting cows, chickens, pigs, and dogs run free in the streets. We have brought these animals into existence and they depend on us for their survival. We should care for those presently living, but we should stop causing more to come into being to serve as our resources. There are those who claim that the world that I envisage is a bleak one because we will no longer have the joy that we experience when we interact with nonhumans. You will probably not be surprised to learn that I very much disagree with that characterization. It is certainly the case that, in the Abolitionist world I would like to see, we will not have any more domesticated animals that we use for food, clothing, or other purposes. We won’t have the joy we may presently get from seeing the sheep graze on the hillside because we won’t be exploiting those animals any longer for their meat or wool. We won’t see the cow in the pasture nuzzling and caring for her calf. And, eventually, we won’t have any more “pets” because there will be no more animals who need to be adopted. Although the thought of that may make us sad consider the following: 170

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We might not see the sheep grazing on the hillside, but we will no longer be responsible—as we are now—for the terror those animals feel when they are shorn, or when, after their wool is taken for the last time, they are sent to die in the slaughterhouse. We might not see the cow and her calf, but we will no longer be responsible—as we are now—for the profound grief that she feels when her baby is taken from her and sent off to be turned into veal chops and the despair of her life that consists of repeated impregnation followed by taking her baby until she has gone through this five or six times and is then taken to the slaughterhouse. We might not have pets at some point in the distant future—there will be plenty to adopt for a long while yet—but we won’t be responsible—as we are now—for bringing into existence beings who are bred for servility and docility and most of whom have horrible lives. We will no longer be responsible—as we are now—for the unspeakable violence that characterizes our present relationship with other animals and that we have, remarkably, come to see as “normal.” We will no longer be part of the slaughter of the many, many billions of animals that we kill every year for food, clothing, entertainment, sport, and research and testing. The primary vehicle for our discriminating against other humans has involved our characterizing these other humans as “animals.” Once some group of humans has been reduced to the moral status of animals, we can disregard their personhood or discriminate against them as persons. Anything goes. If we end our exploitation of animals, how could we continue to discriminate against other humans? We will be unable to do so, or at least not nearly as easily as we have done for thousands of years. I think that it is probably likely that we will expand our moral concern to animals only after we do a better job of rejecting violence against other humans. But it is important to understand that the issues about human rights and animal rights are inextricably intertwined. 171

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There will still be animals in the wilderness and there will be nondomesticated animals—birds, squirrels, mice, and so on— who inhabit our cities and towns. We will interact with them from time to time but our interaction will, admittedly, be very different. We will no longer see them as things or as quasipersons; we will see them as nonhuman persons. Although our obligation not to treat them as property will, strictly speaking, be limited to not treating them exclusively as our resources, their status as persons will militate in favor of our not deliberately killing them, at least in any situation in which we cannot justify that killing as self-defense. When we have interactions with them that we do not particularly want, we will think about resolving any conflicts in ways that reflect our recognition that their lives matter. For example, we will become more careful about things we do that result in mice coming into our homes instead of being careless and then solving the problem that we created by killing them. I welcome the raised consciousness that we would have. An Abolitionist world, which would be far less alienating than the world in which we presently live, would be anything but bleak. And although I have not discussed other reasons that militate in favor of veganism, a vegan world, or a largely vegan world, may be the only way that we will avoid a climate catastrophe. And a vegan world would make possible the eradication of human hunger, as well as the elimination of the specter of more pandemics and other zoonotic diseases. I assume that you reject the idea that animals are just things with respect to whom we have and can have no moral obligations. I anticipate that you started reading this book thinking that animals matter morally but that they were not persons and that “humane” treatment was all that they deserved. I hope that I have persuaded you otherwise and that you now see that veganism is not extreme. What is extreme is thinking that animals matter morally and not being vegan. 172

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If you are wondering whether my position is realistic, let me suggest that what is not realistic is to continue as we have: focusing on making animal exploitation more supposedly “humane” and attacking particular animal uses and products without having a clear and explicit commitment to abolishing all exploitation. That will never work. The only way that we will every change the world for animals is if those who care about them as a moral matter stop participating in their exploitation. If all of us who regard animals as having moral value followed through and put our morals where our mouths are, and stopped eating, wearing, and using animals, there would be a huge number of vegans. Demand for animal products would decrease dramatically and social discourse about animal ethics would shift from a focus on whether treatment is “humane” to whether use can be morally justified. Moreover, there would be a very realistic possibility of securing legislation that dismantled the institutionalized exploitation of nonhuman persons rather that legislation that does little more than continue the fantasy that humans can engage in “compassionate” exploitation. There are so many who do care but who are not yet vegan. I dedicated this book to those people. They are the hope for change. They have the ability to bring about the revolution of the heart is so desperately needed.

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Introduction Where cited materials were found on a website, citations include URLs. Website content and URL addresses are, however, constantly changing. In order to ensure that the cited materials remain available to the reader, the URL citations have, where possible, been captured and are available in a file of notes on my website, at www.HowDoIGoVegan.com. Where the original URL citation is accurate as of the time that the book was completed, the original citation is provided, and the captured citation is provided following in parentheses. If the original URL should subsequently no longer contain the cited material, the reader can access that material through the captured site. Where the original website content or URL citation was already changed as of the time of writing, only the captured citation is provided. Several of the citations are to another one of my sites, www. AbolitionistApproach.com. 1. I recognize that some philosophers maintain that nonsentient objects can have inherent value and that we can have moral obligations that we owe to those objects. They may say, for example, that my destroying the Mona Lisa is morally wrong even if I am the only human left on the planet and I cannot stand the Mona Lisa. I do not share that view. I recognize that some objects may reflect a higher degree of some virtue, such as technical competence—a cathedral displays a higher degree of technical ability to build than does a shack and the Mona Lisa reflects a higher degree of technical competence than does a drawing by a child of a stick figure. But I do not agree that these objects have any greater value other than what we accord

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2. 3. 4. 5.

6. 7.

8.

9. 10. 11.

them. And I would regard it as morally unjustifiable to kill one mouse in order to save the Mona Lisa based on any notion of the supposedly greater inherent value of the Mona Lisa. I also recognize that some think that ecosystems (considered apart from any sentient life that lives in or depends on the ecosystem) have inherent value. I reject this as well. Ecosystems have moral value to the extent that sentient beings value them. Since healthy ecosystems are essential for all human and nonhuman life, they have value (and many, including myself, argue that we should attach greater value to ecosystems than we do because our present valuation is not consistent with the planet being able to sustain sentient life). If, however, there were no sentient life on Earth, God would violate no moral obligation owed to the ecosystem if God decided to destroy it. Michael Tooley, “Abortion and Infanticide,” Philosophy and Public Affairs 2, no. 1 (Autumn 1972): 37– 65, 37. Joseph Fletcher, “Indicators of Humanhood: A Tentative Profile of Man,” Hastings Center Report 2, no. 5 (November 1972): 1–4. John Locke, An Essay Concerning Human Understanding (1689) (London: T. Tegg and Son, 1836), 225. In law, some entities that are not human are considered as “persons.” For example, corporations are considered as persons. But that just means that corporations can sue and be sued, and can own property. Corporations are merely legal forms that human persons use for business or other purposes. Mark Rowlands, Can Animals Be Persons? (New York: Oxford University Press, 2019), 63. See the Cambridge Declaration on Consciousness (July 7, 2012): http:// fcmconference .org /img /CambridgeDeclarationOnConsciousness .pdf (www. howdoigovegan .com/resources/April2020/CambridgeDeclarati onOnConsciousness.pdf). See Lord Medway (Chairman), Report of the Panel of Enquiry Into Shooting and Angling, 1976–1979 (Bradford, UK: Hart and Clough, 1980). The panel, which was chaired by Lord Medway, a respected zoologist and environmental biologist, concluded that all vertebrate animals, including fish and amphibians, are sentient. See Victoria Braithwaite, Do Fish Feel Pain? (New York: Oxford University Press, 2010). See, e.g., Philip Goff, Galileo’s Error: Foundations for a New Science of Consciousness (New York: Pantheon, 2019). See, e.g., Daniel C. Dennett, “Animal Consciousness: What Matters and Why,” Social Research, 62, no. 3 (Fall 1995): 691– 710. 176

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12. For those who want a more detailed discussion of the issues that I discuss here, including more about what I have developed as the Abolitionist Approach to Animal Rights (which is based explicitly on the idea that sentience is the only characteristic needed for nonhuman personhood), please see, e.g., Gary L. Francione and Robert Garner, The Animal Rights Debate: Abolition or Regulation? (New York: Columbia University Press, 2010); Gary L. Francione, Animals as Persons: Essays on the Abolition of Animal Exploitation (New York: Columbia University Press, 2008); Gary  L. Francione, Introduction to Animal Rights: Your Child or the Dog? (Philadelphia: Temple University Press, 2000); Gary  L. Francione, Rain Without Thunder: The Ideology of the Animal Rights Movement (Philadelphia: Temple University Press, 1996); Gary L. Francione, Animals, Property, and the Law (Philadelphia: Temple University Press, 1995). See also Gary L. Francione, “Animals—Property or Persons?” in Animal Rights: Current Debates and New Directions, ed. Cass R. Sunstein and Martha C. Nussbaum (New York: Oxford University Press, 2004), 108–42. I have also coauthored with Anna Charlton three monographs that are intended as practical educational resources: Advocate for Animals!: An Abolitionist Vegan Handbook (Newark, NJ: Exempla Press, 2018); Animal Rights: The Abolitionist Approach (Newark, NJ: Exempla Press, 2015); and Eat Like You Care: An Examination of the Ethics of Eating Animals (Newark, NJ: Exempla Press, 2013). 13. It is more difficult to convince someone that animals are not things. See Gary L. Francione, “Morality and Logic in Vegan Advocacy,” Medium.com (July 13, 2019): https://medium.com/@gary.francione/morality-and-logic -in-vegan-advocacy-e4b8a0377af9 (www.howdoigovegan.com/resources /April2020/moralityandlogicinveganadvocacy.pdf). I am a moral realist and maintain that the moral obligation to accord personhood to all sentient beings is incumbent on everyone to observe, whatever they believe. But the argument in this book is directed to those who already agree that animals matter morally.

1. Our Conventional Wisdom—Animals as Quasi-Persons 1. In Genesis, we are told that God created the world and gave “dominion” over it to humans. Genesis 1:28. But—and here’s the surprise—no one was eating anyone in the beginning. God told humans, “I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.” 177

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2. 3. 4.

5.

6.

7. 8. 9. 10. 11.

12. 13. 14. 15. 16.

Genesis 1:29. And then God told all the animals, “I have given every green herb for meat: and it was so.” Genesis 1:30. So in the beginning, before Adam and Eve disobeyed God by eating the fruit of the forbidden tree and were driven from the Garden of Eden, everyone—humans and animals alike—ate only plant foods. It was only after God destroyed the world with a flood that he told Noah that humans are allowed to eat “[e]very moving thing that liveth.” Genesis 9:3. So we started off in harmony with God as beings who consumed plants. When we fell out with God and were driven from Eden, God permitted us to kill animals as an accommodation to our imperfect state. Immanuel Kant, Lectures on Ethics, ed. Peter Heath and J. B. Schneewind, trans. Peter Heath (New York: Cambridge University Press, 1997), 213. Kant, 212. Kant, 212. Kant’s use of “man” in these passages is not unintentional. Kant, along with the great majority of Western philosophers, did not regard women as full members of the community. That’s a story for another day. See Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? (Philadelphia: Temple University Press, 2000), 100–102. I used “things plus” as an alternative way to describe how the animal welfare approach views animals. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789), in The Works of Jeremy Bentham, vol. 1, ed. John Bowring (New York: Russell and Russell, 1962), 142. Bentham, 143 n.§. Bentham, 143 n.§. Bentham, 143 n.§. Bentham, 143 n.§. John Stuart Mill, “Utilitarianism,” in Utilitarianism and Other Essays: J. S. Mill and Jeremy Bentham, ed. Alan Ryan (Harmondsworth, UK: Penguin, 1987), 279. Mill, 280. Mill, 280. Mill, 324. Mill, 281. See generally Gary L. Francione, Animals, Property, and the Law (Philadelphia: Temple University Press, 1995); Gary L. Francione, Animals as Persons: Essays on the Abolition of Animal Exploitation (New York: Columbia University Press, 2008), 67–128 (reprinting Gary  L. Francione, “Reflections on Animals, Property, and the Law and Rain Without Thunder,” Law and Contemporary Problems 70, no. 1 [2007]: 9–57). I do not 178

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17. 18.

19. 20.

21.

22.

23.

mean to suggest that animals are commodified only in capitalist systems or in systems that involve private property. Animals have been used exclusively as resources and killed in every economic system of which we are aware. This does not take into account any subsidies that the farmer may receive. The “[f]indings and declarations of policy” of the Humane Slaughter Act make clear the importance of economic considerations in assessing matters of animal welfare: “The Congress finds that the use of humane methods in the slaughter of livestock prevents needless suffering; results in safer and better working conditions for persons engaged in the slaughtering industry; brings about improvement of products and economies in slaughtering operations; and produces other benefits for producers, processors, and consumers which tend to expedite an orderly flow of livestock and livestock products in interstate and foreign commerce.” 7 U.S.C. §1901 (1958). The law exempts animals slaughtered pursuant to religious rituals that require the exsanguination of a conscious animal. Gary L. Francione and Robert Garner, The Animal Rights Debate: Abolition or Regulation? (New York: Columbia University Press, 2010), 30–36. Temple Grandin, Recommended Animal Handling Guidelines for Meat Packers, 2nd ed. (American Meat Institute): www.grandin .com/good .management.practices.html, (www.howdoigovegan.com/resources/April 2020/recommendedanimalhandlingguidelines.pdf). Temple Grandin, Lowering Stress to Improve Meat Quality and Animal Welfare: www.grandin .com/meat/meat . html (www. howdoigovegan .com /resources/April2020/stressandmeatquality.pdf). Temple Grandin, Recommended Stunning Practices: www.grandin.com /humane/rec.slaughter.html (www.howdoigovegan.com/resources/April 2020/recommendedstunningpractices .pdf). See also Francione and Garner, The Animal Rights Debate, 38–40. For example, Kim Williams, MD, a distinguished academic physician and former president of the American College of Cardiology, states that the data make clear that a vegan diet provides superior nutrition: “ ‘There are two kinds of cardiologists: vegans and those who haven’t read the data!’ ” Mark Huberman, “An Interview with Kim Williams, M.D.,” Health Science (Spring 2019): 5–11, 8. The Mayo Clinic maintains that a plant-based diet “is a healthy way to meet your nutritional needs”: www.mayoclinic .org/healthy-lifestyle/nutrition-and-healthy-eating/in-depth/vegetarian - diet/art- 20046446 (www. howdoigovegan .com/resources/April2020 /vegetariandiet .pdf). The position of the Academy of Nutrition and Dietetics states that a vegan diet is not only adequate for nutrition, but 179

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24.

25.

26. 27.

28.

29. 30.

offers certain health benefits: www.eatrightpro.org/-/media/eatrightpro -files/practice/position-and-practice-papers/position-papers/vegeta rian -diet.pdf (www.howdoigovegan.com/resources/April2020/eatrightpro -vegetariandiet.pdf). See, e.g., United Nations, Food and Agricultural Organization, Livestock’s Long Shadow: Environmental Issues and Options (2006): www. fao.org /3 /a0701e/a0701e00.htm (www.howdoigovegan.com/resources/April2020 /unfao -livestockslongshadow.pdf). There are many sources about how animal agriculture damages the environment. This UN publication is one of the more conservative estimates of the ecological disaster caused by animal agriculture. See also Richard A. Oppenlander, Comfortably Unaware (Minneapolis: Langdon Street Press, 2011). Even if the use of animals in this context may plausibly be described as necessary, I would reject it as morally unjustifiable because it would violate the right of animals not to be used exclusively as resources. See Francione, Animals as Persons, 170–85 (reprinting Gary  L. Francione, “The Use of Nonhuman Animals in Biomedical Research: Necessity and Justification,” Journal of Law, Medicine and Ethics 35, no. 2 [2007]: 241–48). See, e.g., Francione, Animals, Property, and the Law; Francione and Garner, The Animal Rights Debate, 25– 61. See Gary L. Francione, “Sentience, Personhood, and Property,” in Yearbook of the Irish Philosophical Society (2017/18), special issue, Humans and Other Animals, ed. Noel Kavanagh (Dublin: Mullen Print, 2020), 37– 72, 41–47. See, e.g., Alasdair Cochrane, Animal Rights Without Liberation: Applied Ethics and Human Obligations (New York: Columbia University Press, 2012); Tony Milligan, Animal Ethics: The Basics (London: Routledge, 2015); Cass R. Sunstein, “Slaughterhouse Jive,” New Republic (January 29, 2001): 40–45 (reviewing Francione, Introduction to Animal Rights). For my response to these critics (and others), see Francione, Animals as Persons, 148– 69 (reprinting Gary L. Francione, “Equal Consideration and the Interest of Nonhuman Animals in Continued Existence: A Response to Professor Sunstein,” University of Chicago Legal Forum [2006]: 231– 52); Francione, “Sentience, Personhood, and Property,” 47–57. See, e.g., Francione, Animals, Property, and the Law, 42–46. For a discussion of some of the claimed successes of animal advocates, and how these efforts are actually consistent with and reflect what I say about the problems of animals as property, see Francione and Garner, The Animal Rights Debate, 29–61; Francione, Animals as Persons, 67–128. 180

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Some changes, such as those that resulted from ballot initiatives in California involving housing for hens and other animals used for food, may have effected higher production costs, but it appears that this has more to do with regulatory uncertainty and conflicts between various producers. In any event, there has been no significant change to the fundamentals of animal use. Moreover, these changes were also promoted on grounds of human health. 31. See Robert Garner, “Animal Welfare: A Political Defense,” Journal of Animal Law and Ethics 1, no. 1 (2006): 161– 74, 170– 71. 32. Francione and Garner, The Animal Rights Debate, 42–45. 33. Robert Garner, Animals, Politics and Morality, 2nd ed. (Manchester: Manchester University Press, 2004), 118. 34. Garner, 112. 35. Francione and Garner, The Animal Rights Debate, 42–44, 243–46. 36. Francione and Garner, 40–41. 37. Francione and Garner, 29– 61; see also Francione, Animals as Persons, 67– 128; Gary L. Francione, Rain Without Thunder: The Ideology of the Animal Rights Movement (Philadelphia: Temple University Press, 1996). I discuss this further in chapter 5. 38. There have been a considerable number of cases, both in the United Kingdom and in the United States of supposedly “higher-welfare” facilities (often carrying the approval of animal charities) being as bad as or worse than conventional facilities. See, e.g., Hillside Animal Sanctuary, RSPCA Freedom Food Pig Farm July  2013: www.youtube.com/watch? v=RzwXt vu39Js; David Dayen, “Whole Foods ‘Free-Range’ Chicken Supplier Said to Actually Run Factory Farm,” Intercept (September 15, 2017): https:// theintercept .com /2017/09/15/whole -foods -free -range - chicken -animal -rights/. 39. Global Animal Partnership: https://globalanimalpartnership.org / (www . howdoigovegan .com/resources/April2020/GlobalAnimalPartnership AnimalWelfareFoodLabelingProgram.html). 40. Sunstein, “Slaughterhouse Jive,” 44. 41. Sunstein, 44. 42. Sunstein, 44. 43. Sunstein, 44. 44. For a recent further discussion of the issue of pets as property, see Gary L. Francione, Journal of Value Inquiry 52 (2018): 491–516, https://doi .org /10 .1007/s10790-018-9625-1 (review of Christine Overall, ed., Pets and People: The Ethics of Our Relationships with Companion Animals [New York: Oxford University Press, 2017]). 181

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2. Two Contemporary Approaches to Animal Personhood 1. There are theorists other than Singer and Regan who argue that animals have moral value. See, e.g., Christine M. Korsgaard, Fellow Creatures: Our Obligations to the Other Animals (New York: Oxford University Press, 2018); Martha C. Nussbaum; “Beyond ‘Compassion and Humanity’: Justice for Nonhuman Animals,” in Animal Rights: Current Debates and New Directions, ed. Cass R. Sunstein and Martha C. Nussbaum (New York: Oxford University Press, 2004), 299–320. The only philosopher of whom I am aware who maintains that veganism is a moral imperative given the moral status of animals is Gary Steiner, and he bases his analysis on my work. See Gary Steiner, Animals and the Moral Community: Mental Life, Moral Status, and Kinship (New York: Columbia University Press, 2008). Steiner agrees with my position that sentience alone is sufficient for personhood, but he argues that, because we are steeped in liberal individualism, we are unable to see our commonality with animals and we need a “cosmic holism” that will provide a sense of kinship to move us affectively. I do not think a rejection of liberal individualism per se is necessary as it is clear that many people are moved to agree that animals matter morally and to embrace veganism—they have what I call a “revolution of the heart”—without that rejection. What is necessary is a rejection of the sense of our entitlement to exploit animals, which may or may not be connected with liberal individualism. For a critique of the ecofeminist “ethic of care,” which purports to reject both rights-based and utilitarian approaches as a basis for animal ethics, see Gary L. Francione, Animals as Persons: Essays on the Abolition of Animal Exploitation (New York: Columbia University Press, 2008), 186– 209 (reprinting Gary L. Francione, “Ecofeminism and Animal Rights: A Review of Beyond Animal Rights: A Feminist Caring Ethic for the Treatment of Animals,” Women’s Rights Law Reporter 18, no. 1 [1996]: 95–106). 2. Singer has recently indicated that he has become “doubtful” about preference utilitarianism and that this happened while he was writing the edition of Practical Ethics that I use here. See Peter Singer, “Afterword,” in The Ethics of Killing Animals, ed. Tatjana Višak and Robert Garner (New York: Oxford University Press, 2016), 229–35, 234. 3. John Locke, An Essay Concerning Human Understanding (1689) (London: T. Tegg and Son, 1836), 225. 4. Peter Singer, Practical Ethics, 3rd ed. (New York: Cambridge University Press, 2011), 75. 182

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5. Peter Singer, Animal Liberation, 2nd ed. (New York: New York Review, 1990), 228. 6. Singer, 229. 7. See Singer, 20. 8. Singer first articulated this position in Helga Kuhse and Peter Singer, Should the Baby Live?: The Problem of Handicapped Infants (Oxford: Oxford University Press, 1985). 9. Singer, Practical Ethics, 162– 63. 10. Singer, 80. 11. Singer, 80. 12. Singer adopts the two-level framework of the philosopher R. M. Hare. See, e.g., R. M. Hare, Moral Thinking: Its Levels, Method, and Point (New York: Oxford University Press, 1981). 13. Singer, Practical Ethics, 78. 14. Paola Cavalieri and Peter Singer, eds., The Great Ape Project: Equality Beyond Humanity (London: Fourth Estate, 1993), 4. 15. See Singer, Practical Ethics, 100–4. 16. Singer, 120. 17. Singer, 103. 18. Singer, 103. 19. Singer, 122. 20. Singer, 104. 21. Singer, 104. 22. Singer, 104. 23. Singer, 121. 24. See Singer, 90– 93. 25. Singer, 80. 26. Singer, 80. 27. Richard D. Ryder, Animal Revolution: Changing Attitudes Towards Speciesism (Oxford: Basil Blackwell, 1989). 28. Singer, Practical Ethics, 101. 29. Singer, Animal Liberation, 228, 229. In the first edition of Animal Liberation, Singer rejected the idea that if we killed a merely conscious being and replaced that being with a being who had an equally pleasant life, we did nothing wrong. But in 1990, he decided that it was difficult to explain why the replaceability argument was wrong. 30. Singer, 229–30. See also Singer, Practical Ethics, 120–21. 31. Singer, Animal Liberation, 176. 32. Singer, 232. 33. Singer, 177. 183

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34. Singer, 172, 173. Although Singer has had a rather unfavorable view about the self-awareness of fish as well as chickens, he has argued that, if we eat fish and chicken, we may impose more suffering because we eat more of  those animals than we do larger mammals, such as cows and pigs. Peter Singer and Karen Dawn “Op-Ed: Thinking of Giving Up Red Meat? Half Measures May End Up Increasing Animal Suffering,” L.A  Times (October 16, 2016): www.latimes.com/opinion/op-ed/la-oe-singer-dawn -vegetarian-half-measures-20161016-snap-story.html (www.howdoigove gan.com/resources/April2020/ halfmeasures-losangelestimes.pdf). 35. Singer, 233. 36. Singer’s impact here cannot be underestimated. The large animal charities embrace his views that “compassionate” exploitation is defensible as providing the foundation for their campaigns for supposedly more “humane” welfare reforms. The modern animal movement is very much Singer’s movement. 37. Dave Gilson, “Chew the Right Thing,” Mother Jones (May 3, 2006): www .motherjones.com/politics/2006/05/chew-right-thing/ (www.howdoigove gan.com/resources/April2020/ChewtheRightThingMotherJones.html). 38. Catherine Clyne, “Singer Says: The Satya Interview with Peter Singer,” Satya (October  2006): www. satyamag.com/oct06/singer. html (www .howdoigovegan.com/resources/April2020/satya-singer.pdf). 39. Clyne, “Singer Says.” 40. Rosamund Raha, “Animal Liberation: An Interview with Professor Peter Singer,” Vegan (Autumn 2006): 18–19, 19. 41. Clyne, “Singer Says.” 42. Patrick Barkham, “Alfalfa Male Takes on the Corporation,” Guardian (September 8, 2006): www.theguardian.com/environment/2006/sep/08 /food .ethicalliving (www. howdoigovegan .com/resources/April2020 /guardian-patrickbarkham .pdf). 43. Peter Singer and Jim Mason, The Way We Eat: Why Our Food Choices Matter (Emmaus, PA: Rodale, 2006), 91. 44. Gilson, “Chew the Right Thing.” 45. Peter Singer, “Europe’s Ethical Eggs,” CNN Global Public Square (January 12, 2012): http://globalpublicsquare.blogs.cnn.com/2012/01/12/singer -europes-ethical-eggs/ (www.howdoigovegan.com/resources/April2020 /singer-ethicaleggs.pdf). Gary L. Francione and Robert Garner, The Animal Rights Debate: Abolition or Regulation? (New York: Columbia University Press, 2010), 42–44, 243–46. 46. The letter is available at www.howdoigovegan.com/resources/April2020 /arnimalrightsinternational .jpg. 184

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47. Clyne, “Singer Says.” For further discussion by Singer of Whole Foods Market and what I call the “happy exploitation” phenomenon, see Singer and Mason, The Way We Eat, 177–81. 48. Peter Singer, “Free Fish From Their Pain and Suffering,” Globe and Mail (September 13, 2010): www.theglobeandmail.com/opinion/free-fish-from -their-pain-and- suffering /article4325697/ (www. howdoigovegan .com /resources/April2020/recent-article.pdf). 49. “A Talk with Peter Singer,” Slow Food (April 27, 2009): www.slowfood.com /a-talk-with-peter-singer/ (www.howdoigovegan.com/resources/April 2020/ATalkwithPeterSingerSlowFoodInternational.pdf). 50. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789), in The Works of Jeremy Bentham, vol. 1, ed. John Bowring (New York: Russell and Russell 1962), 142–43 n.§. 51. Singer, Animal Liberation, 5. 52. I first discussed this interpretation of Bentham in Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? (Philadelphia: Temple University Press, 2000), 130–50. 53. Singer, Animal Liberation, 229. 54. Tom Regan, The Case for Animal Rights (Berkeley: University of California Press, 1983), 243. For Regan, a subject of a life is a being who has the right not to be used exclusively as a resource, which is how I am using “person.” It should be noted that Regan is not consistent as to whether “subject of a life” is hyphenated when used as a noun. I do not hyphenate it here when used as a noun. 55. Regan, 245. 56. Regan, 246. 57. Regan, 348. 58. See Gary L. Francione, “Reflections on Tom Regan and the Animal Rights Movement That Once Was,” Between the Species 21 (2018): 1–41, 12n1: https://digitalcommons.calpoly.edu/bts/vol21/iss1/1/ (www.howdoigove gan.com/resources/April2020/ReflectionsonTomReganandtheAnimalR ightsMovementThatOnceWas.pdf). 59. Regan, 78. 60. Regan, 367. 61. Tom Regan, Empty Cages: Facing the Challenge of Animal Rights (Lanham, Md: Rowman and Littlefield, 2004), 59–61. It is not clear whether, in Empty Cages, Regan was abandoning the position that mammals had to be of a certain age before they were considered as subjects of a life, or whether he was saying that birds of any age were subjects of a life. If Regan meant to retain the stipulation with respect to mammals, but not apply it to birds, 185

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62. 63. 64.

65.

66. 67. 68. 69. 70.

then he would be committed to saying that it was uncontroversial to say that a two-week-old chick was a subject of a life but that it was more controversial to say that a two-week- old dog is a subject of a life. It seems unlikely that Regan could have meant this but it is unclear. Regan, The Case for Animal Rights, 351. Regan, 308. For more about the problem that the lifeboat example portends for Regan’s theory, see Francione, Animals as Persons, 210–29 (reprinting Gary L. Francione, “Comparable Harm and Equal Inherent Value: The Problem of [the] Dog in the Lifeboat,” Between the Species 11, no. 3 (1995): 81–89: http:// digitalcommons.calpoly.edu/bts/vol11/iss3/3 (www.howdoigovegan.com /resources/April2020/ComparableHarmandEqualInherentValue.pdf). Tom Regan and Peter Singer, “The Dog in the Lifeboat: An Exchange,” New York Review of Books (April 25, 1985): In this exchange, Singer pointed out the problem with Regan’s lifeboat example and Regan replied that the example could not justify vivisection because that would involve an institutionalized use of animals that would treat them exclusively as resources and the lifeboat example assumes that animals are not part of an institutionalized use. Regan, The Case for Animal Rights, 246. Regan, 246. Regan, 246. Regan, 246. Regan, 368, 391.

3. Animals as Persons—a Matter of Sentience Alone 1. Tom Regan, The Case for Animal Rights (Berkeley: University of California Press, 1983), 246. 2. For a discussion of what I refer to as the “similar-minds” approach, see Gary L. Francione, Animals as Persons: Essays on the Abolition of Animal Exploitation (New York: Columbia University Press, 2008), 129–47 (reprinting Gary L. Francione, “Taking Sentience Seriously,” Journal of Animal Law and Ethics 1, no. 1 [2006]: 1–18). I believe my earliest use of this term was in Gary L. Francione, “Animals and Us: Our Hypocrisy,” New Scientist (June 4, 2005): 51–52. 3. Ludwig Wittgenstein, Philosophical Investigations, trans. G. E. M. Anscombe (New York: McMillan, 1953), 223.

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4. Thomas Nagel, “What Is It Like to Be a Bat?,” Philosophical Review 83, no. 4 (October 1974): 435–50. 5. Nagel, 436. 6. Mark Rowlands, Can Animals Be Persons? (New York: Oxford University Press, 2019), 53. 7. See, e.g., in this interview (at www. howdoigovegan .com/resources /April2020/indystar-singer.pdf), Singer states: “You could say it’s wrong to kill a being whenever a being is sentient or conscious. Then you would have to say it’s just as wrong to kill a chicken or mouse as it is to kill you or me. I can’t accept that idea. It may be just as wrong, but millions of chickens are killed every day. I can’t think of that as a tragedy on the same scale as millions of humans being killed. What is different about humans? Humans are forward-looking beings, and they have hopes and desires for the future. That seems a plausible answer to the question of why it’s so tragic when humans die.” 8. Peter Singer, Practical Ethics, 3rd ed. (New York: Cambridge University Press, 2011), 103. 9. Singer, 121–22. 10. Paola Cavalieri and Peter Singer, eds., The Great Ape Project: Equality Beyond Humanity (London: Fourth Estate, 1993), 4. 11. Singer, Practical Ethics, 104. 12. Regan, The Case for Animal Rights, 246. 13. Singer, Practical Ethics, 80. 14. Donald R. Griffin, Animal Minds: Beyond Cognition to Consciousness (Chicago: University of Chicago Press, 2001), 274. Neurologist Antonio  R. Damasio talks about “core consciousness,” which does not depend on memory, language, or reasoning, and involves an awareness of self in the moment. See Antonio R. Damasio, The Feeling of What Happens: Body and Emotion in the Making of Consciousness (New York: Harcourt Brace, 1999). See my discussion of Griffin and Damasio in Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? (Philadelphia: Temple University Press, 2000), 114–15. In the introduction, I noted that Mark Rowlands argues that nonhuman animals must satisfy four conditions to be considered as persons: consciousness, cognition, awareness of self, and awareness of others. He maintains that consciousness is the easiest and least controversial element to satisfy. I would, as I have in my earlier work, argue that if an animal has consciousness, then the other three conditions follow automatically. But in this book, I want to focus on the argument that consciousness alone

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15.

16.

17. 18. 19. 20. 21.

22. 23. 24. 25. 26.

27. 28. 29. 30. 31.

gives rise to an interest life that is sufficient for personhood, as there can be disagreement about what these other cognitive states involve. See Gary L. Francione, “ ‘Il faut que je vive’: Brigid Brophy and Animal Rights,” in Brigid Brophy: Avant- Garde Writer, Critic, Activist, ed. Richard Canning and Gerri Kimber (Edinburgh: Edinburgh University Press, 2020), 94–118. Brigid Brophy, “In Pursuit of a Fantasy,” in Animals, Men and Morals: An Enquiry Into the Maltreatment of Non- Humans, ed. Stanley Godlovitch, Roslind Godlovitch, and John Harris (London: Victor Gollancz, 1971), 125–45, 126–27. Interestingly, Singer knew of Brophy’s work and cited “In Pursuit of a Fantasy” in Animal Liberation, but for what was a tangential point not in any way related to Brophy’s views about sentience. I am not aware of Regan knowing of Brophy’s work, but they were both primary participants in a symposium that was held in Cambridge, England, in 1977. Brophy, 127. Brophy, 127. Brophy, 127. Peter Singer, Animal Liberation, 2nd ed. (New York: New York Review, 1990), 228–29. Dylan Thomas, “Do Not Go Gentle Into That Good Night,” in Collected Poems of Dylan Thomas, ed. John Goodby (London: Weidenfeld and Nicolson, 2014), 193. Brophy, “In Pursuit of a Fantasy,” 128. Singer, Practical Ethics, 86. Singer, 86. Singer, 86. It is not clear whether fetuses are ever conscious in the womb, and, if they are, this probably occurs only in the third trimester. But even if fetuses are persons, the matter of abortion presents an issue of one person living inside the body of another, and this involves a conflict that is unique. See Gary L. Francione, “Abortion and Animal Rights: Are They Comparable Issues?,” in Animals and Women: Feminist Theoretical Explorations, ed. Carol J. Adams and Josephine Donovan (Durham, NC: Duke University Press, 1995), 149–59. Singer, Practical Ethics, 91. Singer, 91. Singer, 90. Singer, 92. Brophy, “In Pursuit of a Fantasy,” 128. 188

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32. There is a sense in which the concept of personhood identifies criteria for being able to be a full participant in society. That is, personhood focuses on identifying what is necessary to be a moral agent— a person in the social, political, and legal senses of the term. To the extent that personhood is also thought to define the class of humans to whom we have direct moral obligations, limiting personhood to moral agents excludes many humans who, for a variety of reasons, are unable to participate fully in the society and thereby be moral agents. When we are confronted with a human who does not possess even a faint version of the characteristics needed for agency, and can be said to be conscious and nothing more, the fact that most of us unhesitatingly see such humans as persons indicates that we understand the concept of personhood as not being limited to identifying what characteristics are required for meaningful participation in society. That is, we recognize that personhood serves two functions: to identify characteristics that are necessary for full participation in society and to identify those who are not things and to whom we have moral obligations. 33. I am grateful to Dave Langlois for suggesting this way of looking at the matter of an animal’s interest in life. 34. A possible reason why Regan focused so much on the subject-of-a-life criterion with its notion of preference autonomy is that Regan started from the Kantian position that moral agents had inherent value because they were ends in themselves. This starting point may have effectively made it largely impossible for Regan to see sentience alone as the condition for inherent value. That is, animals had to have at least faint versions of the characteristics that Kant associated with agency. 35. John Rawls, A Theory of Justice, rev. ed. (Cambridge: Belknap Press of Harvard University Press, 1999); Roger Scruton, Animal Rights and Wrongs, 3rd ed. (London: Metro, 2000). 36. Gary E. Varner, Personhood, Ethics, and Animal Cognition: Situating Animals in Hare’s Two-Level Utilitarianism (New York: Oxford University Press, 2012). 37. Jeff McMahan, “The Comparative Badness for Animals of Suffering and Death,” in The Ethics of Killing Animals, ed. Tatjana Višak and Robert Garner (New York: Oxford University Press, 2016), 65–85, 71. 38. Jeff McMahan, “Eating Animals the Nice Way,” Daedalus (Winter 2008): 1–11, 1. 39. McMahan, “The Comparative Badness for Animals of Suffering and Death,” 71. 40. Brophy, “In Pursuit of a Fantasy,” 129. 189

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41. Robert Garner, in Gary L. Francione and Robert Garner, The Animal Rights Debate: Abolition or Regulation? (New York: Columbia University Press, 2010), 189. 42. Thomas Jefferson quoted in Heather Andrea Williams, “Compartmentalizing Slavery,” Slate (June  17, 2015): https://slate.com/human-interest /2015 /06/ how -white -people -justified -and - struggled -with - separating - slave -families . html (www. howdoigovegan .com/resources/April2020 /slate-howwhitepeoplejustified .html). 43. Gary L. Francione, “A Brief Comment on the ‘Euthanasia’ of Farm Animals as a Result of Covid-19,” Medium.com (May 10, 2020): https://medium .com/@gary.francione/a-brief-comment-on-the-euthanasia-of-farm-ani mals-as-a-result-of-covid-19-8f954cf01bca (www.howdoigovegan.com /resources/April2020/abriefcommentonanimalscovid19.pdf). 44. Scruton, Animal Rights and Wrongs, 46–47.

4. The Right Not to Be Property 1. See Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed. (Princeton, NJ: Princeton University Press, 1996). 2. See Cass  R. Sunstein, “Slaughterhouse Jive,” New Republic (January  29, 2001): 40–45 (reviewing Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? [Philadelphia: Temple University Press, 2000]). For my response to Sunstein, see Gary  L. Francione, Animals as Persons: Essays on the Abolition of Animal Exploitation (New York: Columbia University Press, 2008), 148– 69 (reprinting Gary L. Francione, “Equal Consideration and the Interest of Nonhuman Animals in Continued Existence: A Response to Professor Sunstein,” University of Chicago Legal Forum [2006]: 231–52). 3. See Gary L. Francione, Animals, Property, and the Law (Philadelphia: Temple University Press, 1995). 4. See Francione, Introduction to Animal Rights, 130–50. 5. See Gary L. Francione, “Sentience, Personhood, and Property,” in Yearbook of the Irish Philosophical Society (2017/18), special issue, Humans and Other Animals, ed. Noel Kavanagh (Dublin: Mullen Print, 2020), 37–72, 41–47.

5. Veganism as a Moral Imperative 1. What about the person who rescues some hens who would otherwise be killed and literally treats them as valued pets, providing them with the sort 190

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3. 4. 5. 6.

7. 8. 9. 10.

11. 12. 13.

of care, including veterinary care, that they would provide to a dog or cat and not killing them when their production declines, and then eats their eggs? Is this morally objectionable? On one level, this does not involve treating the animals exclusively as resources any more than does adopting a dog from a shelter. On another level, the reason why one adopts the hens rather than other animals may be because the hens produce something to eat. Irrespective of the motivation to adopt, eating the eggs is still participating in a behavior that is part of the institutionalized exploitation of the hen. That is, eating the eggs reinforces and perpetuates the idea that eggs are things to eat and that animals are beings who are acceptable to use as sources of food. The same observation would apply if, instead of, or in addition to, eating the eggs of the chicken, the adopter ate a rescued chicken when she died of natural causes. Even if eating the chicken does not harm this particular chicken, it reinforces the idea that chickens are things to eat. Interview with Donald Watson, (August 11, 2004): www.vegparadise.com /24carrot610. html (www. howdoigovegan .com/resources/April2020 /vegansociety-carrotvegetarianaward .pdf). Vegan News (November 1944): 1. Vegan News (November 1944): 1. Vegan News (November 1944): 1. Vegan News (August 1945): 5. The original typewritten newsletter has the date as “August 1944,” which is obviously in error, as the first issue did not come out until November 1944. Vegan News (August 1945): 1. Leslie J. Cross, “In Search of Veganism—2,” The Vegan (Autumn 1949): 15–17, 16. Cross, 16. Leslie J. Cross, “The New Constitution,” The Vegan (Spring 1951): 2–3, 2 (reporting on events that had occurred at the Special General Meeting in November 1950). Cross, 2. Memorandum of Association of The Vegan Society, November 20, 1979. I was banned from participating in the online forum of The Vegan Society and was refused membership in The Vegan Society for promoting veganism as a moral imperative. See Gary L. Francione, “Banned from The Vegan Society for Promoting Veganism!” AbolitionistApproach .com (February  23, 2011): www.abolitionistapproach.com/ banned-by-the-vegan - society-for-promoting-veganis/. My most recent interaction with The Vegan Society (in 2019) involved my criticizing their having a joint campaign with another organization that promotes supposedly higher-welfare 191

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14.

15.

16. 17.

18.

19.

animal products and has its own label for supposedly “humanely” produced animal products. I do not think the present position of The Vegan Society bears much relationship to the ideals of its founders. The only animal charity of which I am aware that promotes veganism as a moral imperative and does not promote any form of “happy exploitation” is Friends of Animals. Catherine Clyne, “Singer Says: The Satya Interview with Peter Singer,” Satya (October  2006): www. satyamag.com/oct06/singer. html (www .howdoigovegan.com/resources/April2020/satya-singer.pdf). See Gary L. Francione, Rain Without Thunder: The Ideology of the Animal Rights Movement (Philadelphia: Temple University Press, 1996). See also Gary L. Francione and Robert Garner, The Animal Rights Debate: Abolition or Regulation? (New York: Columbia University Press, 2010), 48– 61; Gary L. Francione, Animals as Persons: Essays on the Abolition of Animal Exploitation (New York: Columbia University Press, 2008), 67–128 (reprinting Gary L. Francione, “Reflections on Animals, Property, and the Law and Rain Without Thunder,” Law and Contemporary Problems 70, no. 1 [2007]: 9–57). Roger Scruton, Animal Rights and Wrongs, 3rd ed. (London: Metro, 2000), 100. Jeff McMahan, “The Comparative Badness for Animals of Suffering and Death,” in The Ethics of Killing Animals, ed. Tatjana Višak and Robert Garner (New York: Oxford University Press, 2016), 65–85, 65. Ironically, discrimination against various groups of humans is often sought to be justified on the ground that the humans involved are subhuman or not fully human and can, therefore, be treated unfairly or even as things. That is, our treatment of animals as things provides a template for human discrimination and commodification. If we recognized nonhuman personhood, it  would be much more difficult to justify treating humans as things or  otherwise discriminating against them. See Gary  L. Francione, “Treating Humans and Nonhumans ‘Like Animals,’ ” Medium.com (May 30, 2020): https://medium.com/@gary.francione /treating-humans-and-nonhumans-like-animals-531ae607c5 (www. how doigovegan . com /resources/April2020/medium -treating humans and nonhumans.html). However, as a practical matter, we are not likely to recognize nonhuman personhood as long as we are continuing to discriminate against other humans. If you are concerned that veganism is difficult, do not be. Transitioning to a vegan diet—what most people regard as the hardest part of going vegan—is extremely easy. You already eat vegetables, fruits, grains, beans, 192

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20. 21. 22.

23. 24.

25.

26.

27.

28.

nuts, and seeds. You just eat more of those and cut out the other things. If you are concerned that veganism is expensive, it isn’t. I have a website that is the collective effort of a group of us that will provide you all of the information you need for an easy and inexpensive transition to veganism. That website is www.HowDoIGoVegan.com. See Gary L. Francione and Anna Charlton, Advocate for Animals!: An Abolitionist Vegan Handbook (Newark, NJ: Exempla Press, 2018). See chapter 1, note 23. Gary Francione, “It’s Time to Reconsider the Meaning of ‘Animal Welfare,’ ” Open Democracy (January 7, 2018): www.opendemocracy. net/en /transformation /it- s -time -to -reconsider -meaning - of -animal -welfare/ (www. howdoigovegan .com/resources/April2020/Itstimetoreconsidert hemeaningofanimalwelfare.html). See Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? (Philadelphia: Temple University Press, 2000), 151– 66. See, e.g., Francione, Animals as Persons, 170–85 (reprinting Gary L. Francione, “The Use of Nonhuman Animals in Biomedical Research: Necessity and Justification,” Journal of Law, Medicine and Ethics 35, no. 2 [2007]: 241–48). The argument here is that because Hitler was a vegetarian, and Hitler was evil, we should not be vegetarians. This argument has factual and logical problems. Hitler was not a vegetarian (or a vegan) and even if he were a vegan, to say that we should not be vegan because an evil person was a vegan is no different from saying that we should be vegan because Stalin was also a terrible person who killed many millions of innocent people and who consumed meat and other animal foods. For further consideration of these and other similar arguments used against veganism, see Gary L. Francione and Anna Charlton, Eat Like You Care: An Examination of the Morality of Eating Animals (Newark, NJ: Exempla Press, 2013). Rob Dunn, “Human Ancestors Were Nearly All Vegetarians,” Scientific American Guest Blog, July 23, 2012, at https://blogs.scientificamerican.com /guest-blog / human-ancestors-were-nearly-all-vegetarians/ (www.how doigovegan . com /resources /April2020/ humanancestorsnearlyallveg etarians.pdf). See Gary L. Francione and Anna E. Charlton, “The Case Against Pets,” Aeon/Psyche (September 8, 2016): https://aeon.co/essays/why-keeping-a -pet-is-fundamentally-unethical (www.howdoigovegan.com/resources /April2020/Whykeepingapetisfundamentallyunethical.pdf). I am often criticized for my position on domestication by those who subscribe to what is 193

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characterized as the “political turn” in animal ethics. Although there are a number of people associated with this position, it is generally agreed that it originated with Sue Donaldson and Will Kymlicka, Zoopolis: A Political Theory of Animal Rights (New York: Oxford University Press, 2011). Donaldson and Kymlicka are sharply critical of my position that we are morally obligated to abolish animal exploitation and that we should not perpetuate domestication. Indeed, Zoopolis presents itself as an alternative to the Abolitionist position that I have developed. Many “political turn” theorists maintain that humans may be able to continue to use nonhuman animals for at least some products, such as milk, eggs, and clothing, and for labor, without harming them. I disagree with that position. 29. Some of the “political turn” theorists claim that my position is “ableist” because it devalues vulnerable humans. For an example of this sort of analysis, see Katherine Wayne, “Permissible Use and Interdependence: Against Principled Veganism,” Journal of Applied Philosophy 30, no.  2 (2013): 160– 75. For a reply to this criticism, see Gary L. Francione, “Sentience, Personhood, and Property,” in Yearbook of the Irish Philosophical Society (2017/18), special issue, Humans and Other Animals, ed. Noel Kavanagh (Dublin: Mullen Print, 2020), 37– 72, 57– 67; Gary  L. Francione, Journal of Value Inquiry 52 (2018): 491–516: https://doi.org/10.1007/s10790 -018-9625-1 (extended review of Christine Overall, ed., Pets and People: The Ethics of Our Relationships with Companion Animals [New York: Oxford University Press, 2017]). 30. David Benatar, Better Never to Have Been: The Harm of Coming Into Existence (New York: Oxford University Press, 2006). For a fascinating discussion about the adverse effects of domestication, see David A. Nibert, Animal Oppression and Human Violence: Domesecration, Capitalism, and Global Conflict (New York: Columbia University Press, 2013).

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Reference/Study Guide

This book is an essay built around three central ideas: veganism as a moral imperative if animals matter morally; the rejection of the status of animals as property and the right of animals to not be used as property; and a theory of nonhuman personhood based only on sentience. I thought that, instead of a conventional index, it might be more useful to provide a reference/study guide that outlined the book so that the reader could identify these ideas in the contexts in which they occur. Please keep in mind that this guide merely outlines the essay; it should be used in conjunction with the discussions that are presented in the book.

Introduction Many people who think that animals matter morally are not vegan and think that veganism is extreme: 1. The thesis of this book is that, if you think that animals matter morally, then you are committed to be a vegan and to not eat, wear, or otherwise use animals; it is extreme (in the sense of being extremely inconsistent) to believe that animals matter morally and not be a vegan: 1–2. The moral universe is populated by two entities: persons and things. Persons are entities that have moral value; they can be said to have inherent value—that is, value that derives from the sort of beings they are. Things have extrinsic value—that is, they have only the value that we accord to them: 2. “Person” and “human” are not synonymous: 2–3.

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Persons are entitled to certain protections: we must justify imposing suffering on them and we take seriously their interest in their continued existence; we think of persons as having a morally important interest in continuing to live: 3. We generally identify personhood with characteristics that are required for at least minimal participation in social institutions and interaction with others: 3–4. We do not regard animals as either persons or things. We think of them as what we might call quasi-persons; they are not just things because we recognize that they have direct moral significance—we have a moral obligation to not inflict “unnecessary” suffering on them and to treat them “humanely”— but we do not regard them as persons because we think that it is morally acceptable to use and kill them for our purposes: 4–5. Animals are property—they are things we buy, sell, own, and use exclusively as our resources—and this means that, irrespective of what we say, animals are just things that have no moral value. To the extent that we protect animal interests, we do so for the most part to facilitate the economically efficient use of animals: 5. We may accord a high value to certain animals, such as our pets, but this is just an illustration of our freedom as property owners to value our property: 5– 6. Because animals are property, we generally do not ask whether particular uses of animals are necessary; instead, we ask whether it is necessary to impose pain and suffering on animals pursuant to our uses of them, even if those uses are not necessary: 6. The concept of “humane” treatment is nothing more than a fantasy, the primary purpose of which is to make us feel more comfortable about exploiting animals; animal welfare is more about economics than morality: 6. If we really believe that animals matter morally, we need to recognize that animals are nonhuman persons who have a morally significant interest in continuing to live and that it is morally wrong to use them exclusively as our resources irrespective of however “humanely” we treat them; there is no good reason to deny personhood status to animals: 6. Where humans are concerned, although we usually think of personhood as involving the characteristics that are necessary for minimal participation in social institutions and interaction with others, we recognize that there are two sorts of persons: moral agents, or those who possess all of the cognitive characteristics of normally functioning humans and who can participate fully in our social, political, and legal institutions; and moral patients, or humans

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who do not have all of the cognitive characteristics of normally functioning humans or have them to a lesser degree: 6– 7. It is uncontroversial to say that we regard any moral patient who is at least sentient—any human who is conscious/subjectively aware—as being a person with a morally significant interest in continuing to live: 7–8. Sentience provides all we need to justify personhood for nonhumans as it does for humans: 8. Most of the animals we routinely exploit are clearly subjectively aware, and the only explanation we have for denying them personhood status and treating them as things, irrespective of our claiming to regard them as having moral value, is our anthropocentrism, or our belief that humans have greater moral value because we say they do: 8– 9. If animals are nonhuman persons, they must have a right not to be treated as property. A right is simply a way of protecting an interest, and the personhood of nonhumans should be protected even if it would benefit humans to exploit them: 10. The right not to be treated as property is presented as a moral right, not a legal one, and our recognition of the one right not to be property would require that we reject the institutionalized exploitation of animals: 10–11. If animals are persons and have a right not to be used as property, then we should end our institutionalized exploitation of them and embrace veganism, which is defined as not eating, wearing, or using animals or animal products to the extent practicable, with the goal of abolishing all animal use because such use cannot be morally justified: 11–12. There are also compelling health and ecological reasons, as well as reasons related to human rights and the alleviation of world hunger, to eat a plant-based diet, but this book will concentrate on the moral reasons why, because animals matter morally, we should not use animals exclusively as our resources for any purpose: 12–13. A vegan is one who, whenever faced with a meaningful choice, chooses not to participate directly in animal exploitation: 13. Veganism is a matter of what justice requires if animals are nonhuman persons; although less suffering is better than more suffering, if animals matter morally, we cannot justify imposing any suffering pursuant to using animals as resources irrespective of however supposedly “humane” our treatment is; veganism is a moral imperative: 13–15. An outline of the book is presented: 15–16. This book is not intended as an exhaustive examination of all the issues and debates involved in animal ethics; it is a relatively brief essay that seeks to

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provide a starting point for a broad social discussion about the moral status of nonhuman animals: 16. The goal is not to convince those who think animals are things that they are wrong and that animals have moral value; the goal is to demonstrate to those who view animals as having moral value—a very large group—that veganism is a logical consequence of what they already believe: 16–17.

Chapter 1: Our Conventional Wisdom— Animals as Quasi-Persons Before the nineteenth century, animals were seen as things that existed outside the moral and legal communities: 18–19. The status of animals as things was sought to be justified by denying that animals had interests or, if they had interests, by ignoring those interests because animals were supposedly spiritually or cognitively inferior to humans: 19–21. In the nineteenth century, a paradigm shift ostensibly occurred and animals were recognized as having moral value; this developed into what is now known as the animal welfare position—humans can use and kill animals, but they have a moral obligation to treat animals “humanely” and not to impose “unnecessary” suffering on them: 21–22. The animal welfare position resulted in animals being considered as quasi-persons, or beings who have morally significant interests in not suffering but not in continuing to live: 22. An important architect of what became the animal welfare position was lawyer/philosopher Jeremy Bentham, who maintained that sentience was the only characteristic necessary for animals to matter morally, but that, because they were not self-aware and were not harmed by being killed, animals had no interest per se in continuing to live and we could use and kill them: 22– 24. A central idea of the animal welfare position from the outset was that humans have superior minds and, therefore, in assessing competing interests, those of humans hold greater weight than those of nonhumans: 24–25. The animal welfare position resulted in animal welfare laws, which are often criminal laws, and this represents an acknowledgment that the moral value of animals is widely accepted and reflects conventional thinking about animals: 25–27. The animal welfare position promised a great deal but delivered very little; the problem is that animals are property; they are things we buy, sell, own, 198

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and have the right as owners to kill or to value as we wish with few real limits: 27–28. Although animals are property, they are different from inanimate property because they have interests, including the interest in not suffering, but we protect those interests more or less to the extent that we need to do so to exploit animals in an economically efficient way: 28–30. Although we claim to reject “unnecessary” suffering, necessity is judged in light of what level of suffering is required to exploit animals in the ways that we use them even though most of these uses cannot plausibly be characterized as necessary: 30–31. Animal welfare laws discount or ignore animal interests in not suffering by exempting what are considered the “normal” or “customary” practices of institutionalized animal use, or courts interpret pain and suffering imposed pursuant to those practices as “necessary”: 31. Linking “humane” treatment with customary practices assumes that property owners are rational and will not impose more harm on their property than they need to and that customs will reflect rational practices: 31–32. Deferring to property owners to determine what suffering is necessary allows them to impose a great deal of suffering on their animals: 32. This framework of deference to custom applies not just to animals used for food but for other purposes as well; we assume that animal owners act in rational ways and we defer to norms and customs of use. In addition, using custom to define “humane” treatment will provide for notice to animal owners about the requirements of the law: 32. What is generally prohibited is the infliction of gratuitous suffering given uses that are unnecessary; the animal welfare standard is largely meaningless and anticruelty laws apply to a minuscule portion of our animal use: 32–33. Talking about “balancing” human and nonhuman interests is absurd because the result has been determined from the outset by the status of the animal as the property of humans against whose property rights the animal’s interests, which are not protected by rights, are balanced: 33. Bentham realized that the regulation of slavery was difficult; he did not appreciate that the same sorts of difficulties would affect the regulation of animal use: 33–34. It makes no sense to ask about our moral obligations to beings who exist as nothing but resources for us; the quasi-personhood of animals has failed miserably to protect animal interests: 34–35. Some ethicists claim that the solution is to improve the regulation of animal use, but this ignores the legal and economic aspects of the property status of animals; because animals are property, standards of animal welfare 199

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will always be low if people want to continue to use animals for food, clothing, and so forth; animal welfare reforms are minor at best: 35–37. There is a disincentive for governments, which usually have close relationships with industry, to support or impose regulations that make animal products more expensive since this affects demand: 37. Some countries may have higher welfare standards, but the differences are minor in the grand scheme; animals are still subjected to treatment that would be considered torture if humans were involved, and they are all still killed. The notion of “humane” treatment is a fantasy everywhere, particularly in light of the fact that most animal use is transparently frivolous: 37–39. In recent years, institutional animal users, supported by many animal advocacy organizations, have begun to market supposedly “higher welfare” products, but these products certainly cannot be characterized as “humane”: 39–41. Some claim that our treatment of our pets demonstrates that the status of animals as property is not inconsistent with respecting their interests in not suffering, but this ignores that those who choose to treat their pets well are simply exercising their rights as property owners to value their property and have the right to choose a lower valuation, including to choose to value their pets at zero and have them put to death or dump them at a shelter that will kill them if another home is not found: 41–43. There is a question as to whether the most caring pet owners respect all of the interests of their animal property: 43. If the law were to require humans to respect fully all of the interests of their animal property, animals would cease to be property: 43–44. Conclusion: The animal welfare position has failed in that animal interests in not suffering are largely ignored or undervalued; if animals are property, “humane” treatment is a fantasy. The solution is not to better regulate our use of animal property; it is unrealistic to think that we will be able to accord their interests in not suffering any significant protection. The response that we need to regulate more and better also ignores that any animal suffering imposed as part of an unnecessary use cannot be justified and assumes our denial of personhood to animals is justifiable: 44–45.

Chapter 2: Two Contemporary Approaches to Animal Personhood Although some may come to the conclusion that animal use cannot be justified even if animals are not persons with a morally significant interest in 200

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continuing to live, most cling to the idea that, if our treatment of animals really were “humane,” our use of them would be morally acceptable: 46–47. A number of animal ethicists have explored whether animals have a morally significant interest in their lives; we consider two theorists: Peter Singer and Tom Regan: 47. Singer, widely regarded as the leading animal ethicist, is a utilitarian who rejects moral rights: 47–48. For much of his work on animal ethics, Singer has been a preference utilitarian; he maintains that what is morally right is what will best satisfy the preferences of all affected: 48. He maintains that personhood requires a being to be rational, self-aware, and connected to a future self: 48. Singer maintains that most humans are persons but some are not: 48–49. He argues for a presumption in favor of respecting the life of a being who is a person: 49–50. He claims that some animals—nonhuman great apes, elephants, dolphins, and some birds—are self-aware and future-oriented and can be considered as persons: 50–51. With respect to other animals, including those we routinely exploit for food, Singer maintains that whether we consider them as persons is a matter of whether we are willing to give them the benefit of the doubt on the issue of self-awareness: 51. He argues that even animals who are self-aware are not “fully” persons, since they are not self-aware or focused on the future to the degree that normally functioning humans are, and he ostensibly maintains that their lives should not receive the same level of protection: 51–53. With respect to animals who are sentient but not self-aware, or where it is not clear that they are self-aware and we are unwilling to give them the benefit of the doubt, we may be able to justify using these animals as replaceable resources as long as we provide them a reasonably pleasant life and a relatively painless death: 53–55. Singer does not object to free-range egg production and claims that we are not obligated to avoid conventional eggs contained in food or to exercise great effort to avoid food containing dairy; we should avoid eating fish, but if we only eat fish we take “a major step away from speciesism”: 55. Singer rejects embracing veganism as a moral imperative—as something we are obligated to do whenever possible—because that involves “purity” more akin to a religious dietary law than to a political and ethical movement: 56. He describes himself as a “flexible vegan” and, in his public animal advocacy, explicitly promotes the idea that it may be morally justifiable to use 201

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animals who are not self-aware as replaceable resources as long as the animals have been treated well or we limit our consumption of them. Singer argues that being a “conscientious omnivore” is morally defensible and we have an obligation not to be vegan in situations in which our adherence to veganism may make it appear to nonvegans as difficult to maintain; he characterizes consistent veganism as “fanatical”: 56–57. Singer supports campaigns for supposedly more “humane” treatment of animals and urges animal advocates to promote what I call “happy exploitation,” which involves getting institutional animal users to offer supposedly higher-welfare animal products: 57–58. He maintains that veganism “is not for everyone” and is not “the only thing one can do to eat ethically”: 58. Although Singer may claim that he supports supposedly more “humane” exploitation simply as a result of his being a utilitarian who sees the reduction of suffering as a good thing, he cannot deny the reality that this support and his promotion of the concept of the “conscientious omnivore” have the effect of making those who care about animals feel more comfortable about continuing to exploit them: 59. Singer maintains that we should apply the principle of equal consideration to animal interests, but he does not appreciate that the property status of animals makes largely impossible according equal consideration to animal interests: 60– 62. Tom Regan is a rights theorist who rejects utilitarian moral theory and maintains that at least some animals have rights that preclude treating those animals exclusively as resources irrespective of consequences: 62– 63. He maintains that persons, or, as he refers to those who have a morally significant interest in continuing to live, “subjects of a life,” include moral agents and moral patients who have a psychophysical identity over time and preference autonomy: 63– 64. All subjects of a life have inherent value and have it equally: 64. Being a subject of a life makes the attribution of equal inherent value intelligible and nonarbitrary in that all subjects of a life are relevantly similar; they can all be harmed in the same ways, and we cannot justify according rights to only some: 64– 65. Regan’s subject of a life and Singer’s concept of a person are similar; both focus on the notion of having a connection with a future self: 65. For Regan, mammals one year of age or older are clear cases of subjects of a life, and they have a right to be treated as ends in themselves rather than as means to human ends: 65– 66.

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Regan recognizes that other animals may be subjects of a life if they have a psychophysical identity over time and preference autonomy: 66. Although Regan maintains that all subjects of a life—human and nonhuman—have equal inherent value, he maintains that, in situations of conflict that do not involve institutionalized animal use, we are obligated to choose the human subject of a life over the nonhuman because the former has greater opportunities for satisfaction of interests. This position threatens to undermine Regan’s theory given that he maintains there is no nonarbitrary way to distinguish between moral agents and moral patients: 66– 69. He leaves open whether being a subject of a life is necessary (as opposed to sufficient) for inherent value, but he is “radically unclear” as to how animals who are merely sentient can be subjects of a life: 69– 70. If a merely sentient being is not a subject of a life, then Regan argues that the being may have no direct moral significance and any obligation we have to that being may be owed indirectly to those who are subjects of a life: 70– 71. Conclusion: Singer maintains that, although sentience is sufficient for moral significance, personhood requires that a being be rational and selfaware, and the latter requires connection with a future self. Although a few species of animals clearly qualify to be persons, it is not clear that their lives receive the same level of protection as do those of normally functioning humans. With respect to other species, which include those we routinely exploit for food, it may be permissible to use them as replaceable resources. Singer fails to comprehend the effect that property status has on valuing animal interests. Regan maintains that all subjects of a life—those who have preference autonomy and a psychophysical identity over time—have rights to respectful treatment and cannot be used exclusively as resources and killed. His view that humans have greater opportunities for satisfaction of their interests presents a problem for his theory. If animals are not subjects of a life, they may not have direct moral significance; that is, they may not even be quasi-persons. Singer and Regan essentially reject sentience alone as sufficient for animal personhood: 71– 72.

Chapter 3: Animals as Persons—a Matter of Sentience Alone The general approach to nonhuman personhood, exemplified by Singer and Regan, is the “similar minds” approach, which links personhood with cognitive

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characteristics beyond sentience and requires that animals have minds that are similar to those of humans to be persons: 73– 74. The similar-minds approach ignores that we can never really know what animal minds are like; we know that many animals are conscious but we very probably cannot know the nature of that consciousness: 74– 76. Even if we think we can understand animal consciousness, it is highly unlikely that there will ever be agreement as to whether animals have the required characteristic(s) for personhood: 76. Even if we identified a particular cognitive state in animals that approximated a human cognitive state we associate with personhood, there would still be disagreement about whether the nonhuman and human versions of the characteristic were relevantly similar: 76– 78. All theories of personhood that require that animals have cognitive characteristics beyond sentience to be persons beg an important question—why isn’t sentience enough?: 78– 79. Singer, Regan, and many other similar-minds theorists would, echoing Bentham, maintain that merely sentient animals do not have an interest in continuing to live; they lack a connection with their future selves and cannot have preferences about their future existence: 79. This position ignores that all sentient beings are self-aware on some level: 80. This position also ignores that having an interest in living and being connected to a future self are, as Brigid Brophy observed, necessary characteristics of sentience: 80–81. Sentience is a means to an end; sentience perpetuates itself so that life continues; being alive consists of an organization towards staying alive; it is in the interest of any sentient being to continue to live even if the being cannot think abstractly about what it is to exist over a period of time: 81–83. All sentient beings have preferences for the future and are connected to their future selves even if that future self is the one that will exist no further in the future than the next second: 83. In the human context, we recognize that sentience is sufficient for personhood; we see someone who has late-stage dementia and lives in an eternal present as being a person and we recognize that requiring a greater degree of connection to a future self will lead to arbitrary and unprincipled results: 84–87. All sentient humans are beings of a particular type; there is something it is like to be that being; all sentient humans value their lives however they do so: 87–88.

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Further discussion of the morass we enter if we attempt to link human personhood with characteristics beyond sentience: 88– 90. We do not see merely sentient humans as equal to humans who have greater cognitive sophistication in the sense of recognizing an obligation to treat them the same for all purposes, but they are equal in that we cannot morally justify treating any of them exclusively as a resource for others: 90. To the extent that a human is not sentient and lacks all cognitive ability, the human has no interests and we may properly regard that human as not being a person even though we may for other reasons treat the human as if they were a person: 90– 91. A human infant is very different from a normally functioning adult, but both humans lose something if they are killed even if the adult loses much more: 91– 92. We consider it morally acceptable to kill a human person, if at all, only when it is in the interest of the person: 92. Where humans are concerned, the question we ask to determine whether there is a morally significant interest in continuing to live (and, hence, personhood) is not whether the human can think about having a life in the same way that a normally functioning adult does, but rather whether it is in the interest of the human to live; we regard all sentient humans as valuing their lives even if that consists only of valuing their next second of consciousness: 92– 93. We cannot compare the value of lives in some neutral way and thereby have a basis for rejecting the idea that all lives are equal based on the idea that every being values their life; the value of a life is something that cannot be assessed from any perspective other than that of the individual being as that being: 93– 95. Attaching what is a necessarily arbitrary value to cognitive characteristics beyond sentience risks having “degrees of personhood” that would commit us to a sort of moral perfectionism that most of us would find objectionable as well as involve a completely unworkable framework of analysis: 95– 96. When it comes to humans, we do not require that moral patients be faint versions of moral agents in order to be persons: 96– 97. When it comes to animals, we require that they be faint versions of moral agents to be persons; we assume that an interest in life must be accompanied by a particular conceptual framework beyond mere consciousness: 97– 99. We assume that in order for animals to have an interest in life, they must have a particular conceptual framework that reflects human thinking about life, which occurs through the lens of our mortality: 99–100.

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Using sentience alone is the only fair way to proceed with both humans and nonhumans; sentience is a necessary and sufficient condition for being a person: 100–1. Even if some beings lose more when they die than others, every sentient being loses something very important— every aspect of their conscious existence—which, by virtue of being alive, they necessarily value however they value it; if we go beyond sentience, the interests of beings who do not have the arbitrarily chosen “special” characteristic(s) will be ignored and unaccounted for in our moral analysis: 101–2. To say that all sentient nonhumans are persons is not to propose any general equality beyond saying that we cannot use any person exclusively as a resource for others, however supposedly “humanely” we may do so: 102–3. The reason that we treat humans and nonhumans differently when it comes to personhood is anthropocentrism, or the idea that humans matter more morally because we say they do; we cannot justify our differential treatment of sentient nonhumans except by self-interested proclamation: 103– 7. Differences between human and nonhuman minds may be relevant for some purposes, as are differences between human minds, but the differences are not relevant to whether we ignore the personhood of certain beings and use them exclusively as resources: 107. All sentient beings must have at least equivalents of human concepts, or their behavior would be completely chaotic and they would be incapable of any adaptive functioning: 107. The issue is not whether animals have lesser minds; the issue is whether they have minds: 107–8. We have attributed lesser minds to humans in exactly the way that we do to nonhumans in order to justify treating those humans as things: 108. The fact that we euthanize nonhumans in certain circumstances in which we would not euthanize humans does not mean that we fail to treat the former as persons: 108–10. Conclusion: The similar-minds theory fails for several reasons. We should focus only on sentience as a criterion for personhood. Although sentient beings differ from each other, every sentient being is like every other sentient being in that there is something it is like to be that being. When it comes to humans, we recognize that linking personhood with anything other than sentience makes determinations about personhood arbitrary. We do not treat all sentient humans the same but we recognize that all must be accorded the essential protection of personhood and not be used exclusively as a means to the ends of others. The same analysis holds for nonhumans. We cannot 206

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justify denying personhood to animals and killing them irrespective of how supposedly “humane” our treatment of them is: 110–11.

Chapter 4: The Right Not to Be Property Saying that someone is a person is another way of saying that they have a right not to be chattel property: 112. A right, for the purposes of this book, is simply a way of protecting an interest—the interest is protected even if protection involves undesirable consequences: 113. To say that animals have a right not to be used as property means that the interest animals have in not being treated exclusively as resources cannot be ignored simply because humans would derive benefits from using animals: 113–14. We recognize that, if humans are going to be members of the moral community at all, they cannot be chattel slaves: 114–15. The right not to be property may be thought of as a basic right in that it is a prerequisite to having other rights: 115–16. If humans have inherent value, they cannot be property because to be property is to be a thing with no inherent value: 116. To say that all humans have a right to not be used as property does not mean that we have an obligation to protect humans from all suffering or death, but it does mean that we cannot impose any suffering or death on them pursuant to using them as commodities or exclusively as resources: 116–17. We can use other humans as resources (such as when we call a plumber to fix a leak) but we cannot use other humans exclusively as resources: 117. All human persons have an interest in not being used exclusively as resources even if they cannot think about this interest in an abstract way— this does not mean that we treat all humans the same, but we accord all humans the right not to be used as the property of others irrespective of their cognitive characteristics beyond sentience: 117–18. The same analysis holds for nonhumans—if they have moral value, they cannot be property because property status means that their interests in not suffering will be undervalued or ignored, they will be used in situations in which there is no plausible claim of necessity, and their interest in continuing to live will necessarily be frustrated if they are killed: 118. Property status does not, as some claim, protect animals: 118–19. According animals the right not to be property does not mean that we protect animals from all suffering and death, but it does mean that we should 207

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protect them from all suffering and death incidental to our using them as commodities or exclusively as our resources: 119. The right not to be property is a pre-legal, basic moral right: 119–20. If we recognize the right of animals not to be property, we are committed to abolishing the institutionalized exploitation of animals: 120. Although utilitarians reject moral rights, an argument can be made that they, too, must reject property status because it makes the application of the principle of equal consideration to animal interests extremely difficult if not outright impossible: 120–22. Conclusion: To say that animals are persons means that they have a right not to be property. If animals are property, they remain as things. It seems that even utilitarians, who reject moral rights, must reject the property status of animals: 122–23.

Chapter 5: Veganism as a Moral Imperative If animals are persons and have a right not to be used as property, we can no longer justify our institutionalized exploitation of them for food, clothing, entertainment, biomedical research, and so on: 124. Our obligation does not just concern animal exploitation as a social matter; it extends to our personal participation in these institutions; we have a moral obligation to be vegan: 124–25. Veganism involves not eating, wearing, or using animals or animal products to the extent practicable, with the goal of abolishing all animal use, because such use cannot be morally justified: 125. Veganism is not just a matter of diet; diet is a central focus because eating animals is the primary way we relate to them and represents our numerically most significant use of them: 125. What is required is that we abstain from direct participation in animal exploitation when we have a meaningful choice: 125. Veganism is a moral imperative; if animals are not things and are persons with a right not to be used exclusively as resources, veganism is what justice requires: 125–26. Vegetarianism of the sort that involves not eating animal flesh but allows for consuming eggs and dairy involves a violation of the right of animals not to be used exclusively as resources; eggs and dairy involve suffering and death: 126–30. Certain segments of the early vegan movement recognized veganism as a moral imperative and advocated for the abolition of animal exploitation: 131–34. 208

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For the most part, the large animal charities and organizations do not recognize veganism as a moral imperative and, at most, see it as one way among others of reducing suffering: 134. “Reducetarianism” involves the idea that we ought to promote the reduced consumption of animals and animal products as itself a normatively good thing; it is analogous to saying that it is acceptable to promote beating slaves fewer times per week rather than to promote the abolition of slavery: 134–36. Gimmicks like “meat-free Monday” encourage the belief that animal foods other than meat are morally acceptable to eat on one day of the week and what one eats on the other six days is not a matter of profound moral concern: 136. The term “flexible vegan” is meaningless because no one consumes or uses animals or animal products 100 percent of the time: 136. If someone is not willing to go vegan and wants to take measures that fall short of being vegan, they are free to do that, but measures that fall short of veganism should not be promoted as normatively desirable—as what one ought to do if one regards animals as having moral value: 136–37. Reform campaigns that seek to make animal use supposedly more “humane” generally do very little because the property status of animals keeps animal welfare standards low: 137. Reform campaigns also create partnerships between animal advocates and institutionalized exploiters and encourage the idea that there can be morally acceptable forms of animal exploitation: 137–39. Single-issue campaigns target particular animal products/uses and encourage the false belief that some types of animal exploitation are morally more acceptable than others and thereby encourage animal exploitation: 139–40. Single-issue campaigns often target the exploitative practices of minorities and foreigners, which practices are morally indistinguishable from the practices accepted by those doing the targeting; this is hypocritical and encourages racism, sexism, and xenophobia: 140. In order to have a single-issue campaign that results in the desired amount of donations, animal charities must generally assemble coalitions of people who engage in animal exploitation other than the targeted practice and who can identify others (those who engage in the targeted practice) as the culpable parties: 140–41. Measures that fall short of veganism are not analogous to incremental measures in the civil rights context because the latter concerns whether human persons are being treated fairly and how unfair treatment may be rectified, whereas the former purports to achieve personhood in incremental ways: 141–42. If we regard animals as having moral value, we cannot justify the “baby steps” approach that some promote: 142. 209

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Those who share the view that animals matter morally should go vegan and then engage in creative, nonviolent education focused on veganism as a moral imperative: 142. Veganism as a moral imperative is not radical in the sense that our conventional wisdom about animals is that we should not impose “unnecessary” suffering on them, but just about all our animal use is transparently frivolous and cannot plausibly be characterized as necessary. We ought to reject these uses even in the absence of accepting nonhuman personhood or the right of animals not to be property: 143–45. Our only use of animals that arguably may be characterized as necessary is the use of animals to cure serious human illnesses; the personhood/rights approach would reject such use: 145–46. Those who believe that animals are spiritually inferior cannot reasonably believe that God approves of transparently frivolous animal uses: 146. There are some line-drawing problems in that we may not know with certainty whether some animals (certain crustaceans and mollusks) are sentient, but there is no doubt whatsoever that the overwhelming number of animals we exploit are sentient; we should err in favor of attributing sentience when there is any doubt, given what is at stake: 146–47. There is no reason whatsoever to posit that plants are sentient, and even if they were, we would end up consuming many fewer plants if we consumed them directly rather than processing them through animals, who are inefficient converters of plants into protein: 147–48. There are some who argue that we cannot have a moral obligation to be vegan because we cannot live a perfect vegan life and cannot eliminate or avoid all harm to animals; this position fails because the same observation could be made about harm to humans, but we still recognize the right of all humans not to used exclusively as resources for others: 149–55. We may have to do more to discharge our moral obligations to animals, but veganism is the least we should do. Veganism is the moral baseline: 155 The argument that we cannot have a moral obligation to be vegan because consuming animals is “natural” fails because “natural” is often simply used as a synonym for good, and humans are physiologically more like herbivores; we certainly do not need to eat animal products for health reasons: 155–57. The argument that only those who have been vegan from birth can insist on veganism as a moral imperative fails because it makes no sense to say that someone who comes to recognize the existence of a fundamental right (whether of humans or nonhumans) cannot promote respect for that right unless they have always recognized that right: 157–58.

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If animals are nonhuman persons, it is never justifiable to deliberately kill them in the absence of a claim of self-defense; it may, however, be excusable if there is a genuine compulsion: 158–59. If we choose a human over a nonhuman in a situation of compulsion, that does not mean that we regard the nonhuman as morally inferior and that we may use nonhumans exclusively as resources; our choice may reflect nothing more than our own inability to understand animal minds and to know what is stake for the nonhuman in the way that we can better understand what is stake for the human: 159– 60. Regan maintains that we should always choose the human subject of a life over the nonhuman in situations of conflict because the content of the minds of humans is more morally significant; his position is anthropocentric and threatens to undermine his theory: 160– 61. Whatever we do in situations of conflict does not allow us to create those conflicts in the first place by treating animals as property and thereby creating conflicts between human property owners and animal property: 161. If animals matter morally, we cannot justify domestication, which involves our deliberate production of beings who are perpetually servile and submissive and who are vulnerable in a human context in which they do not belong: 161– 63. We cannot analogize domesticated nonhumans to disabled humans: 163. Domesticated animals do not have a right to reproduce: 164. Conclusion: If animals are persons, we must abolish our institutionalized exploitation of them and stop using and killing them for our purposes; veganism is a moral imperative. Domestication cannot be justified: 164– 65.

Conclusion This book was not meant to convince those who believe animals are merely things that they are wrong; it was meant to convince those who do regard animals as having moral value that veganism is a moral imperative: 166. Our conventional thinking about animals is that they matter morally because they are sentient; we are obligated not to impose “unnecessary” suffering on them and to treat them “humanely,” but they are chattel property that we can use and kill: 166– 67. Because animals are property, the standard of animal welfare is very low: 167.

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Our denial of personhood to animals based on their supposedly not having an interest in continuing to live is absurd and cannot be defended; nonhuman personhood, like human personhood, depends only on sentience: 167– 68. We may not know where the precise line is between nonhumans who are sentient and those who are not, but virtually all the animals we routinely exploit are unquestionably sentient; where we are not sure, we should err in favor of treating beings as sentient given what is at stake: 168– 69. If animals are going to matter morally, then they must have the one right not to be property; if they are property, they remain as things: 169. If we agree that animals matter morally, we can no longer justify killing animals pursuant to our institutionalized exploitation of them, irrespective of however supposedly “humane,” and we are obligated to be vegan: 169. This view may appear to be radical, but we would see it as consistent with our widely shared view that it is wrong to impose “unnecessary” suffering on animals if we did not assume the legitimacy of the property status of animals: 169– 70. Our moral “conflicts” with animals are, for the most part, of our own making: 170. We have an obligation to care for domesticated animals now in existence, but we should stop causing more to come into existence: 170. There are those who claim that the Abolitionist position for which I argue would result in a bleak world because we would no longer have the joy of interacting with animals, but this position neglects that our joy comes at a great expense to animals and that our world would be enriched immeasurably by our no longer taking part in the unspeakable violence and injustice of animal exploitation: 170– 71. If we stopped treating animals like things, we would no longer have the template that allows us to discriminate against, commodify, and otherwise harm disfavored groups of humans whom we analogize to animals: 171. There will still be conflicts between humans and nondomesticated animals, but we will view these conflicts in a different way once we recognize that animal lives matter: 172. An Abolitionist world would be anything but bleak and may also represent our best chance for avoiding climate catastrophe and more pandemics and other zoonotic diseases as well as alleviating human hunger: 172. It is extreme (in the sense of being extremely inconsistent) to maintain that animals have moral value and not be vegan: 172. It is not realistic to suggest that going on as we have will change the world for animals; the only realistic solution is for the very large number of humans who believe that nonhumans matter morally to stop participating in their 212

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exploitation. This would result in a dramatic decrease in demand for animal products and a shift in social discourse from a focus on whether treatment is “humane” to whether use can be justified; it would also make possible more meaningful political efforts: 173. Those humans who value nonhumans morally but who are not yet vegan are the key to change and to the revolution of the heart that is desperately needed: 173.

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