Introduction to Animal Rights Your Child or the Dog?
by Gary L. Francione
(Temple University Press, 328 pp., $69.50)

There are nearly 60 million domestic dogs in the United States, owned by over 36 million households. Over half of these households give Christmas presents to their dogs. Millions of them celebrate their dogs' birthdays. If a family's dog--say, a little black pug or a big Rhodesian Ridgeback--were somehow forced to live a short and painful life, the family would undoubtedly feel some combination of rage and grief. What can be said about dog owners can also be said about cat owners, who are more numerous still. But through their daily behavior, people who love their pets help to ensure short and painful lives for millions of animals that cannot easily be distinguished from dogs and cats. Are such people hypocritical? Should they change their behavior? Should animals have rights? To answer these questions, we need to step back a bit.

Many people insist that animals cannot have rights at all. Denying that animals are rational or self-aware, Kant thought of animals as "man's instruments," deserving protection only to help human beings in their relation to one another: "He who is cruel to animals becomes hard also in his dealings with men." Bentham took a quite different approach, urging that "the 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. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor.... 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 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?" And Mill concurred, repeating the analogy to slavery.

Of course many people think that the whole idea of "animal rights" is bizarre, a kind of parody or joke. But others find it obvious that animals can be given legal rights, noting that such rights are often given to people who lack ordinary human capacities. Infants, very small children, and people who are unconscious all have rights, at least as a matter of law.

Those who want to change human practices with respect to animals fall into two camps. Some people insist on the protection of animal welfare, whereas others seek animal rights. Animal welfare advocates tend to argue for laws preventing cruelty and requiring humane treatment. The Society for the Prevention of Cruelty to Animals is committed to this basic approach. Advocates of animal rights, by contrast, tend to oppose any and all human "use" of animals. They invoke the Kantian idea that human beings should be treated as ends and not means--but they extend the idea to animals, so as to challenge a wide range of current practices. These include the use of animals in rodeos, circuses, zoos, agriculture, hunting, even scientific experimentation. People for the Ethical Treatment of Animals and the Humane Society of the United States are committed to this approach.

On many topics, animal welfare advocates and animal rights advocates will join to urge large-scale reforms. Consider a few examples. At greyhound tracks, dogs often live in small cages, stacked on top of each other, for eighteen to twenty-two hours each day. Older greyhounds, and those who cannot run very fast, are usually killed or sold to laboratories. Over 20,000 of them are put to death each year. Race horses are very popular, but when they are no longer able to race they tend to end up at the slaughterhouse, usually at a young age. About seventy-five percent of the racehorses in America, or 100,000 of them, are slaughtered every year. Rodeos are well-attended, and if you have cable television you can easily see them nearly every week. One event is called "calf roping.'' Calf ropers chase a terrified calf, running at thirty miles per hour, until they throw a rope around its neck, force it to stop, and then flip it over and tie it up. Another event is called "steer wrestling." Here the goal is to jump off a horse and onto the back of a steer, twisting its neck until it falls to the ground. With respect to the use and abuse of animals, all this is just the tip of the iceberg.

Gary Francione is a lawyer and law professor who has devoted most of his career to the protection of animals. Francione believes not only in animal welfare, but also in animal rights. But much of his argument is about the importance of preventing unnecessary animal suffering. Francione insists that the problem lies not in our moral commitments, which are fine, but in our practices. He believes that what we do, with respect to animals, is quite inconsistent with what we think we should do. One of his goals is to show that our current beliefs require substantial changes, simply in order to prevent unnecessary suffering, which we purport to oppose. He urges that we should never "inflict suffering on animals merely for our pleasure, amusement, or convenience"-and that this idea means that we should not hunt animals, kill them for fur or clothing, or eat them. While recognizing that the question of the use of animals in scientific experimentation is more difficult, Francione also argues that animals should not be used in experiments, at least if they qualify as vivisection.

Many people have argued for animal rights by emphasizing the cognitive abilities of animals--by suggesting, for example, that chimpanzees can learn sign language, or by showing that dogs and horses are quite intelligent. Taking his cue from Bentham, Francione finds the cognitive evidence interesting but unnecessary, even irrelevant. In Francione's view, the capacity to suffer is what is important. He thinks that the idea of "humane treatment," now embedded in our culture and our law, attests to our fundamental agreement with him.

Francione's major complaint is that we show a form of "moral schizophrenia about animals." While "we all agree that it is morally wrong to impose unnecessary suffering on" them, we also impose a great deal of suffering on them, and none of this is actually necessary. Francione is most confident that our practices violate our ideals when it comes to the use of animals for sport hunting, entertainment, clothing, and meat. Hunters kill "at least 200 million animals per year, not counting the tens of millions that are wounded and not retrieved and those killed on game farms or in similar contests." While some hunting provides protection against dangerous animals or is animated by economic purposes, most of it is just for fun. (As part of that fun, hunters sometimes lie hidden before ambushing and then shooting animals; sometimes they imitate the sounds of other animals to lure their prey and then kill them.) Francione also objects that animals are used and abused for amusement, not only in rodeos, but also in circuses, carnivals, racetracks, and zoos.

To be sure, animals are sometimes treated well and protected against suffering. But often they are not. In circuses, whips, chains, metal hooks, and electric prods "are all regularly used for training." About 40 million animals are killed each year so that their pelts can be turned into clothing. Many of these animals spend all of their lives in truly deplorable conditions, often confined to small wire cages before being killed by electrocution, gassing, or neck-breaking. In many domains, great progress has been made in the care and the protection of horses; but countless horses continue to be subject to cruel treatment and early death.

Still, the largest source of abuse of animals, in Francione's view, is agricultural: the use of animals as food. Many of the eight billion animals killed for food each year are born on "factory farms." This means that "animals are raised in the smallest possible spaces and the cheapest facilities;' with cattle being "squeezed shoulder to shoulder in large dirt corrals;' and most lacking "enough space to move their limbs or turn around." While chickens "are crammed into buildings holding thousands of birds" pigs used for breeding "are kept in metal farrowing stalls two feet wide." Many animals are mutilated "to decrease injuries from close confinement" and to ensure docility. Both bulls and pigs are castrated, sometimes with a knife, sometimes with pincers or pliers. Pigs have the added bonus of having their tails cut off and their teeth clipped. Owing to the conditions under which they are raised and live, animals used for food are highly susceptible to injury and disease. By the time they are slaughtered, over 80 percent of pigs have contracted pneumonia.

Francione thinks that none of this is necessary. Invoking the views of the Department of Agriculture and the American Dietetic Association, he urges that "a completely plantbased diet, supplemented by vitamin B-12," is entirely enough to ensure excellent human health. And he goes further, suggesting that avoidance of meat can be helpful in reducing a number of health problems, including heart disease, cancer, diabetes, hypertension, and obesity. Francione thinks that with respect to food, it is quite unnecessary to ask hard questions about how to balance animal interests and human interests. Animal suffering can be prevented without seriously compromising human interests.

Francione acknowledges that vivisection, or scientific research that involves animals, raises a much harder question. He is alert to the widespread view that such research confers indispensable benefits on human beings. Still, he concludes that here, too, are serious problems. A part of his claim is that "the use of animals in biochemical research is no less callous or exploitative, no less an industry, than is factory farming or wildlife management." He contends that researchers make no special effort to minimize distress and suffering.

Francione also thinks that the link between use of animals for research and real benefits for human beings is "usually very attenuated." He refers to many examples of possibly gratuitous suffering, including research in California attempting (with little success) "to change female dogs into male dogs and male dogs into female dogs through the use of hormones." Or consider efforts to investigate the effects of stress on the development of lambs, by removing babies from their mothers, placing them in hammocks, and then subjecting them to electric shocks; attempts to study "wounds" by shooting cats in the head with steel pellets; investigations of "learned helplessness" by burning "dogs with such intensity and duration that the dogs just gave up trying to escape the pain." Francione suggests that such cases are not atypical--and that they show that the human benefits of animal research are greatly overstated. (His discussion here is thin and superficial, a point to which I will return.)

What accounts for the disparity between our commitment to humane treatment and our less-than-humane practices? Maybe most people are unaware of those practices, or fail to focus on them. If they did focus on them, they might change them. The painfully vivid photographs of animal suffering in Francione's book support this view. They are as convincing, in their way, as any of his arguments. But this is not Francione's own answer. Veering from animal welfare to animal rights, he thinks that the basic problem is that animals are "property," things that we own. Since animals have the status of things, we treat them as means to our ends, rather than ends in themselves. Francione wants the law to consider animals as "persons" rather than as "property."

He is aware that many laws on the books, motivated by concerns about animal welfare, seem to ban cruelty to animals. Some such laws are strongly worded. In Francione's view, however, these laws do very little good. They explicitly exempt domains in which much suffering occurs, including the killing of animals for food, in hunting, or for scientific research. Such laws, moreover, are narrowly interpreted by courts, giving the benefit of every doubt whenever a human being is alleged to have acted cruelly. Even worse, such laws are rarely enforced, because public prosecutors are the only people who can enforce them, and they have limited budgets and apparently little interest in using what resources they have for the protection of animals. Since ordinary people cannot sue to protect animals, and since animals are not given legal representation, enforcement is sporadic at best. This is a central point. If human beings were authorized to bring suit on behalf of animals, existing law would mean much more than it now does.

It is at this point that Francione's arguments become more ambitious. He believes that the "failure of animal welfare laws should not come as any surprise. If the animal is property, how can that animal be anything other than a commodity? How can an animal's interests be assessed or valued at any level higher than is necessary to ensure efficient exploitation of the animal property for its designated purpose?" Francione thinks that the idea that animals are property should be replaced by a "principle of equal consideration." By this Francione does not. mean that we must "treat animals in the same way as humans," or that we should "give up the idea that in situations of true emergency or conflict--where necessity requires--we may prefer human over animal interests." What the principle of equal consideration means is that animals cannot be treated as mere "things."

Animals, like human beings, have inherent or intrinsic value. Hence Francione goes still further, urging that the principle of equal consideration means that animals must be seen as "persons." He does not think that animals should be subject to the criminal law, or argue that "we should extend to animals the right to vote or to drive a car or to own a property or to attend a university. But just as we believe that humans should not suffer from use as the slaves or property of other humans, animals should not be made to suffer from our use of them as resources." Here Francione commits himself to animal rights, not merely to animal welfare.

Francione uses these ideas to challenge some widely held views. His easiest target is Descartes, who thought that animals cannot experience pain or pleasure and are more or less like robots. This astonishingly dumb idea has few adherents today, but some philosophers do follow in Descartes's footsteps, urging that animals lack real "desires" or "wants." Francione is able to dismiss this view quite quickly. He has an equally easy time with the suggestion that we are authorized to act cruelly, because animals themselves act cruelly or that our use of animals is justified because it is "natural." The cruelty of (some) animals does not justify human cruelty. And as Mill wrote long ago, naturalness is not a sufficient justification for anything.

More respectable and widespread is the view that human beings are qualitatively different from animals, above all because we have cognitive abilities that they lack. Invoking Darwin, Francione insists that human beings and animals are more alike than we generally acknowledge. But, wisely, he does not press this disputed point. For him, as for Bentham, the ability to reason in certain ways, even if it is limited to human beings, does not make it acceptable for human beings to inflict suffering on animals or to treat them as objects.

But Francione knows that Bentham stopped well short of where animal rights enthusiasts would like to go. Bentham believed that so long as human beings minimize animal suffering, it is acceptable to kill animals and to eat them. The reason is that animals are not self-aware and hence do not suffer from the knowledge that they will die and be eaten. In an important way, the well-known utilitarian philosopher (and animal welfare advocate) Peter Singer is in Bentham's camp. While insisting that animals should be protected from unjustified suffering, Singer also believes that most animals lack self-awareness and desires for the long-term future. He urges that what is important is their pains and pleasures while they are alive--not that they continue to live.

Singer concludes that it is morally acceptable to eat animals who "have a pleasant existence in a social group well suited to their behavioral needs, and are then killed quickly and without pain." Francione strongly disagrees. He thinks that animals very much care about what happens to them, that they want to continue to live, that they are aware of their individuality, and that by virtue of their sentience, animals have a sufficient "interest'' in continuing to live.

Francione knows that many people believe that there are serious conflicts between human beings and animals, and that when such conflicts occur, it is entirely proper for us to prefer human interests. (Hence his subtitle, Your Child or The Dog?, is misleading and more than a little ridiculous; this is really not the kind of conflict that concerns Francione.) But in his view, many of the conflicts exist only because of human practices, and these might be changed. "If we recognize that animals have a basic right not to be treated as our resources, and we abolish those institutions of animal exploitation that assume that animals are nothing but our resources ... we will stop producing animals for human purposes and thereby eliminate the overwhelming number of these false conflicts in which we must 'balance' human and animal interests." If animals are not produced for entertainment or food, many of the current issues will therefore disappear.

Francione ends with the striking suggestion that his proposals, ambitious and radical though they seem, actually fit with what we "already purport to accept." Of course acceptance of those proposals would come with a price. "We would have to forgo the unnecessary pleasure of eating animals and having their fat clog our arteries, the fun of watching them being tormented in rodeos or circuses, the excitement of walking in the woods and blowing them apart or wounding them with arrows, and the very questionable science involved in making them addicted to drugs that they would never use except in laboratories." Francione does not believe that this price is too high to pay.

No one should doubt that the movement for animal rights has come a long way. In 1792, Mary Wollstonecraft wrote , Vindication of the Rights of Women, and in the same year Thomas Taylor responded with A Vindication of the Rights of Beasts, a parody designed to reveal the absurdity of Wollstonecraft's position by suggesting what seemed to Taylor the unthinkable thought that beasts, as well as women, have "intrinsic and real dignity and worth." With many others, Francione thinks that Taylor's claims, ventured as parody, were right. And though some people continue to ridicule animal rights advocates, Francione's claims are serious ones, urged passionately but with admirable lucidity, and with considerable sensitivity to counter-arguments.

To come to terms with what Francione has to say, it is necessary to see that he makes two different claims. The first, which dominates the first half of his book, is simple and intuitive, and based on animal welfare. The second, which dominates the second half of the book, is complex, unintuitive, and it is based on an amalgamation of claims about animal welfare and animal rights. Consider the simple claim first. Francione believes that human beings should not inflict suffering on animals unless it is "necessary" for us to do so. In fact, he insists that most people would agree with this claim. But he also thinks that the massive suffering inflicted on animals is not, in fact, necessary. Francione is on firm ground with respect to entertainment and hunting, but on much less firm ground with respect to scientific experimentation; and eating animals seems to be an intermediate case. The principal contribution of his argument here consists not in any novel theoretical claims, but in bringing to light practices, many of them unconscionably brutal, that we prefer to ignore.

But even here there are problems. Francione does not confront an obvious question. What if significant steps were taken, in all of these domains, to reduce the level of animal suffering? (Hunting is obviously a special case, where some bans might be well justified.) What if anti-cruelty laws were amended to protect animals against unnecessary suffering when they are raised for food or used in entertainment or scientific experiments? This is hardly unimaginable. Indeed, some nations have taken steps in precisely this direction. Why wouldn't this be the best path for the future? Francione's answer, largely implicit, is that such laws will be ineffective in practice. He appears to think that the only real way to prevent unnecessary animal suffering, as an empirical matter, is not to police current practices but to eliminate them. Maybe he is right. But he does not establish this crucial empirical point. In any case, he does not say much to deflect the reasonable suggestion that our current priority should be to amend existing law to prevent the most indefensible practices, through selective bans and restrictions.

An additional problem is that the idea of "necessity" is insufficiently analyzed. Few things are literally "necessary." When we say that something is necessary, we usually mean that it is clear that it should be done, all things considered. Perhaps scientific experimentation on animals is necessary in the sense it will save hundreds or even thousands of human lives. Francione's discussion here is quite thin. He does not effectively counter the argument, made by many specialists, that such experimentation has produced huge benefits. Any reasonable overview, such as that provided by Deborah Rudacille in her admirably balanced book The Scalpel and the Butter. fly, will show many examples, starting with Pasteur's foundational work on cholera and rabies, and continuing to contemporary work on cancer and heart disease.

Indeed, experimentation on animals can even produce large benefits for the very species involved. Medical advances have provided dramatically improved care for dogs, cats, and horses, as well as human beings. It is controversial, of course, to say that the suffering of certain animals can be entirely redeemed by benefits to other animals of the same species. But if scientific experimentation does a great deal of good, and if animals can be protected against abuse in the process, might it not be justified, whether or not it is in some strict sense "necessary"? Indeed, scientific experiments might well produce far more gain than in ordinary cases in which we consider the infliction of harm "necessary."

The same questions can be asked about Francione's plea for a stop to meat-eating. Suppose that to ensure a well-balanced diet, eating animals is desirable, certainly for children but for adults as well (a point that Francione contests on empirical grounds). Suppose, too, that steps can be taken to ensure that animals raised for food are given decent lives. In such circumstances, would it be so clear that meat-eating is indefensible? Within the utilitarian framework, Francione has no simple answer to such a question--a point supported by the fact that Bentham and Singer, strong advocates for animals and also utilitarians, do not object to meat-eating.

It is for this reason that Francione's more radical proposals depend not on claims about animal welfare, but on more ambitious arguments about animal rights. Hence he seeks to establish that animals should be treated as "persons" entitled to "equal consideration," and emphatically not as "property." Francione seeks to raise the moral status of animals, by making it dear that they are ends in themselves, with intrinsic value, rather than mere means to human ends. In this regard he moves well beyond Bentham, seeking to establish that animals have fights that are inviolate, whatever the consequences.

Francione is right to say that animals have intrinsic value; but at first glance, it is not clear whether Francione's objection to the idea that animals are "property" is mostly semantic. Perhaps the term need not matter much. If animals are property, it does follow that people can buy and sell them, and also that they are "owned" as a matter of law. But it does not follow that "owners" can do anything they want with or to animals. You own your house, but you are probably not allowed to burn it down or blow it up, or to use it as a concert hall. You own your stereo, but if you have nearby neighbors you cannot play music as loud as you want. In most domains, the rights of "owners" are severely qualified.

This is certainly true in the case of animals. The fact of ownership does not mean, as a legal matter, that people can treat living creatures as mere means to human ends. In multiple ways, current law forbids people from treating animals however they wish to treat them. You are not permitted to abuse your cat or your dog. In many states, you are even under an affirmative obligation to take decent care of any animal that you "own," by providing food, shelter, and medical care. All this suggests that the status of "owner" is not incompatible, in principle, with a firm commitment to preventing the unnecessary suffering of animals or even with treating animals as beings with both legal rights and intrinsic value.

Indeed, those who think that they are "owners" of their pets are unlikely to think that their animals are mere commodities, or that attention need not be paid to "their" animal's well-being. All they think is that, as owners, 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. And we can go further. The fact of ownership even protects animals in important ways. If you own your dog, you are morally obliged to protect him; you are also allowed to sue people who have harmed him, and this makes it less likely that such harm will occur.

Perhaps Francione objects to the fact that many animals--dogs, cats, horses, and others--are bought and sold in the marketplace. And many pet stores do treat animals badly, unconscionably so. But are animals in any sense harmed by purchase and sale, standing by itself? People who have bought their dog do not think that they own a "thing." Payment does not make people believe that the animal with whom they live is a mere commodity. The real problem here is the mistreatment of animals, not the mere fact of sale.

In these circumstances the legal concepts of "property" and "ownership" do not seem to matter all that much. Maybe Francione does not really disagree with this point. Perhaps he believes, more modestly, that the notion of animals as "property" helps to create certain unjust relationships--that it tends to make (not all, but too many) people think that animals are largely means to human ends, with interests that can be readily subordinated in case of conflict. He appears to think that if animals are "property," the law is unlikely to recognize their interests. I think that Francione should acknowledge that the language of property does not necessarily signify that animals will be treated as means or that their legal rights will amount to little in the real world. But he might be insisting, more plausibly, that the terms we use can help to form attitudes and policies, and that if we use words like "property" and "own," we will carry with us a conception of the relationship between people and animals that, on reflection, we ought to reject.

Put in this more cautious form, as a kind of empirical hunch about the effects of language on practices and even laws, Francione's view seems quite reasonable. Of course, human beings should, under certain circumstances, have rights over animals--at least if the existence and the exercise of those rights promotes (or does not injure) the well-being of animals themselves. It would be foolish to say that the movements of domestic cats, or horses used in equestrian events, cannot be controlled by people--not because the control is "necessary" to protect human beings, but because it is highly likely to make the lives of those cats and horses longer and better. We can acknowledge this point while also doubting that animals should be seen as "property" or as "owned." I think that in the end Francione is right to object that this way of talking does violence to people's most reflective understandings of their relationships with other living creatures.

But we have not yet gotten to the bottom of things. Francione's principle of equal consideration is intended to move beyond the utilitarian framework, to make Kantianism safe for animals. He thinks that animals should not be used for the sake of human beings, even if the benefits would be very large. On behalf of his view, he urges that most people would not tolerate experimentation on human beings, even if the potential benefits, for other human beings, would be very large. Francione thinks that animals, no less than human beings, should have rights that operate (in Ronald Dworkin's metaphor) as "trumps" against other interests. The right to be treated as an end, rather than a means, should ensure that animals cannot be used, even if the consequences of use would be good on balance.

Some of Francione's argument is hard to follow. In his view, the central reason that animals have rights, and should be treated as ends, is that they have the capacity to suffer. Only sentient creatures, he thinks, should be protected against human "use." Where Kant thought that a capacity for a sense of justice was a precondition for rights, Francione believes that the real precondition is the experience of pain. In his view, creatures with the capacity to suffer cannot be treated as "means;' whatever the consequences (except in a genuine emergency).

Francione is taking a complicated and unusual step here: he is merging the idea of animal welfare with the idea of animal rights, through the claim that animals have rights because they can suffer. It is not dear that the merger of the disparate traditions can be made to work. The importance of suffering, under the utilitarian framework, is inextricably intertwined with the insistence on the overriding importance of consequences. I am not sure that Francione can insist on the centrality of suffering, and the right not to suffer, while also arguing that overall consequences do not matter. And under the Kantian framework, the insistence that consequences do not matter is inextricably intertwined with the claim that human beings are moral agents. I do not see how Francione can insist that consequences do not matter while refusing to say whether and in what sense animals are moral agents.

But let us pass over these complexities. Is it right to say that animals should never be "used" by human beings? What exactly does this mean? Does it mean that greyhound racing should be banned, even if greyhounds are well-treated and actually enjoy racing? Does it mean that police officers may not ride horses, even if those horses enjoy their duties and generally flourish? Does it mean that zoos should be outlawed, even if zoo animals live good lives?

Francione is right to say that sentient animals have intrinsic value, and that animal well-being is a good in itself. He is also right to reject the widespread view that animals are not entitled to rights because they lack a capacity to think in moral terms. Even if animals lack that capacity--a disputed empirical issue-human beings certainly have it, and we should exercise our capacity so as to act morally. For us, at least, might does not make right. But I am not sure that Francione's claims about the intrinsic value of sentient animals, and about the need to treat animals as ends, can do as much work as Francione thinks. More particularly, I am not sure that these claims adequately support Francione's plea for the abolition of any practice in which animals are "used." In many domains human beings seem to be "used," and the relevant practices are not objectionable for that reason. When you hire a plumber, a lawyer, an architect, or someone to clean your house, you are treating them as means, not as ends.

To be sure, these arrangements are consensual rather than coercive, and Francione makes much of the fact that human slavery is banned. He thinks that if we reject human slavery, we should reject its equivalent for animals. But he goes much too fast here. Children are certainly not slaves, and they are not "owned"; but adults have the legal right and the moral fight, within a certain range, to restrict the choices of children. People do not have equivalent rights over adults, but that is because a general capability to choose is central to the well-being, properly conceived, of adult human beings.

Of course animals should be permitted to make many particular choices. But is the general capability to choose--where to go, what to do, when and what to eat-so central to the well-being, properly conceived, of greyhounds and horses and cats? This is much less dean. At the very least, it is sensible to authorize human beings to prevent these animals from making choices that would endanger their own well-being. Now this does not mean that human beings can control animal behavior however they wish. They should attempt to make it possible, not only for animals not to suffer, but also for them to live decent lives. Often this means that people should just leave animals alone. But the obligation to treat animals as ends, and not as things, does not require all animals to be given unlimited freedom of choice.

If this is right, then Francione's general claims, which are convincing, do not support his particular recommendations. In fact, it is not so clear that human rights, including rights of autonomy, cannot be overridden when the benefits of doing so are very large. Francione makes much of the widely held intuition that we should not force a few people to face scientific experiments even if the collective benefits would be enormous. "We generally do not think that we should use any humans as unconsenting subjects in biomedical experiments, even though we would get much better data about human illness if we used humans rather than animals in experiments." To be sure, our horror at the use of human beings for scientific experimentation is useful; it helps guard against practices that would, in most real-world cases, be impossible to justify. But we should be careful with the moral intuition here.

Well-suited to almost all real-world cases, the intuition might misfire if applied across the board. When the stakes are sufficiently high, government is permitted to override what would otherwise be rights, even constitutional rights. Free speech and freedom of movement can be restricted in times of war. In fact, an emergency is not required; you can be banned from writing graffiti on national monuments and even from trespassing on certain areas to carry your views to government officials. If consequences are relevant in the case of human beings, then they matter for animals, too. Francione has not shown that human use of animals is morally unacceptable if the relevant animals are treated as well as possible and allowed, to the extent possible, to live decent lives.

In my own view, Bentham was entirely right. Because animals can suffer, they should be protected, much more than they now are, against pain and distress. The idea that animals are mere "property" is an anachronism, inconsistent with our considered judgments about the relationships between people and animals; we should abandon the metaphor of "property." Most of the arguments against new efforts to protect animals are astonishingly self-serving, reflecting a kind of moral and logical obtuseness that their proponents show in few, or no, other settings. From this it does not follow that people cannot have rights against animals, or that they should not be allowed to restrict the movement of animals, or that scientific experiments on animals should be halted. The most ambitious claims for "animal rights" have yet to be established. Still, the less ambitious claims are quite convincing. They require significant changes in our practices.

Cass R. Sunstein is a contributing editor at The New Republic.

By Cass R. Sunstein