Reviewed by: Steven M. Wise
Vermont Law School

Gary L. Francione
Animals, Property, and the Law
Philadelphia: Temple University, 1995. xviii, 349 pp. $22.95 paper.

Nearly everyone agrees that the legal system should ensure the humane treatment of nonhuman animals. Yet, perhaps paradoxically, nonhuman animals are routinely abused and killed in the United States each year by the billions, and with apparent legal sanction. The stated purpose of Francione's book is to propose and defend the "straightforward and simple" thesis that the reason for this apparent paradox is that nonhuman animals lack legal rights.

Nonhuman animals have no legal rights in Western law generally and none under Anglo-American common law or statutory law specifically (the common law is the law that judges make in the process of deciding cases based upon general principles; statutes are enacted by legislatures). Therefore they lack legal personhood. Instead, nonhuman animals are characterized by law as property, the objects of the rights of legal persons, and mere means to human ends. This legal thinghood , a term I introduced elsewhere, inevitably leads to their nearly unbounded victimization by human beings. In Francione's view, the only protections nonhumans have from human victimization are consistent with what he terms legal welfarism . This doctrine allows human uses of nonhuman animals that benefit human society and prohibits only those uses that gratuitously inflict suffering upon them. In his view, nonhuman animals must obtain at least some basic legal rights in order to have their basic interests respected.

Two objections will, no doubt, be levied against Francione's thesis, though I think that neither is substantial. The first objection will be that legal rights are not as indispensable as Francione would have us believe. Thus the interests of nonhuman animals can be adequately protected, we may be told, without ever having to grant them any legal rights. This objection betrays a serious lack of practical experience working within a modern Western legal system. It also confuses how one might wish a legal system would work with the way that the legal system under which we live actually does work. Most seriously, it ignores hundreds of years of legal and political history that teach that the most effective way known to protect such fundamental interests of individuals as life, liberty, and bodily integrity is by making those interests the subjects of fundamental legal rights. An individual who possesses fundamental legal rights is a legal person. Any individual, whether human or nonhuman, who lacks fundamental legal rights is nothing but a legal thing subject to the fleeting whims of legal persons.

The second likely objection is that legal rights are not as effective as Francione would have us believe in protecting the fundamental interests of nonhuman animals. There are many examples of people with legal rights whose fundamental interests remain unprotected. But while the possession of fundamental legal rights may not be a sufficient condition for the protection of fundamental interests, it is certainly a prerequisite for protection under modern Western law. Without fundamental legal rights, the fundamental interests of nonhuman animals will continue to be completely ignored.

As every attorney who has ever tried to litigate on behalf of the interests of nonhuman animals knows, Francione's thesis is entirely correct. Indeed, his strength consists in guiding the reader through a detailed discussion and evaluation of the inadequate protection that nonhuman animals presently receive from both statutes and common law, and the obstacles that attorneys encounter in litigating on their behalf.

As Francione explains, nonhuman animals received no protection from either English or American common law. The paltry number of statutes that have been enacted since the 1820s to protect the interests of nonhuman animals has scarcely altered human behavior toward them. Every American state has an anti-cruelty statute, but these statutes generally carry minor penalties, proscribe only the most unjustifiable and unnecessary inflictions of pain or suffering, often contain enormous exceptions, such as exceptions for nonhuman animals used on farms or laboratories, and are wholly dependent upon overworked public prosecutors for enforcement. Even the federal Animal Welfare Act fails almost completely to regulate the manner in which nonhuman animals are subjected to experimental procedures. Its few restraints are rarely enforced by the U.S. Department of Agriculture, which has repeatedly informed Congress that it does not wish to be the enforcer. Citizens are prohibited from private enforcement. Similarly, the federal Humane Slaughter Act fails to prevent painful slaughter, while the federal Live Stock Transportation Act fails to prevent the cruel transport of livestock to slaughter. None of these statutes create legal rights, but merely direct that humans try to respect a few interests of a few nonhuman animals in a few situations.

A jurisprudential wall therefore separates human beings, who are cloaked in legal rights, from nonhuman animals, who are naked of them all. But this wrong established, the fundamental question is how to lead nonhuman animals from one side toward the other. Here, Francione appears far too pessimistic. It is true that nonhuman animals have no legal rights and have never had legal rights. But there is nothing inherent in the nature of law itself that permanently disqualifies nonhuman animals from ever attaining fundamental legal rights. Slaves, women, children, and the mentally ill are just some of the categories of humans who have attained a degree of legal personhood that reasonable people might once have thought impossible.

One source of Francione's pessimism might be his overemphasis on the positivist influence upon fundamental legal rights. Positive legal rights are such legal rules as treaties, constitutions, and statutes that are promulgated by the state for any reason it sees fit. Positivist legal theory understands law merely as politics with no necessary connection either to morality, which is that which might be considered right and wrong, or to history, in the form of society's ideals, visions, traditions, and social consciousness. He correspondingly minimizes the influence of natural law and natural rights principles. Natural law theory and its cousin, natural rights, claim that law may reside outside the state within moral principles of right and wrong that may be ascertained through reason and conscience - "We hold these truths to be self-evident; that all men are created equal; that they are endowed by their Creator with certain unalienable rights." After having been nearly beaten into submission by legal positivists for nearly a hundred years, natural law and natural rights proponents have fought and regained a substantial portion of their former vitality in the wake of the Nazi use of positive law to justify the most terrible actions. Presently, not only the rapidly developing international law of human rights, catalyzed by Nuremberg, but the domestic law of many nations, as well as American state and federal law at all levels, constitutional, legislative, and common law, are saturated with such broad principles of natural law and natural rights as justice, fairness, reasonableness, equity, equality, and liberty. These great principles have formed the keys that have opened the doors to the fundamental legal rights of human beings. It is reasonable to hope that they will fit the door to the fundamental legal rights of nonhuman animals as well.

Francione also underemphasizes the degree to which the common law, which has hitherto treated nonhuman animals so poorly, is capable of mending its sorry ways. It is our most flexible kind of law and the most sensitive to the great principles of natural law and natural rights. It also constitutes the bulk of American law. Forever evolving in principle, the common law looks not just to positive law. It may consider history, for most of law cannot be apprehended without knowledge of its antecedents. It can weigh new scientific facts that will help judges better to conceive the nature of all animals, human and nonhuman, and better to understand those interests that may be held in common. The common law is therefore likely to be the initial wellspring of such fundamental legal rights for nonhuman animals as bodily integrity and personal liberty.

Perhaps his easy familiarity with the arguments of legal philosophers and other scholars underlies Francione's claim that Western legal systems generally provide two defenses of the property status of animals: "the theological justification found in Genesis" and that "animals possess some `defect' that makes them qualitatively different from humans." This may accurately reflect the sentiments of many legal and moral philosophers. But these ideas have had little impact upon the way in which courts actually decide cases and constitute far too gloomy an assessment of how 20th century common law judges actually understand the legal status of nonhuman animals. One could survey a thousand modern decisions that categorize nonhuman animals as property and find neither defense of their property status. The real problem is that 20th century judges have rarely sought to uphold the legal thinghood of nonhuman animals by a direct appeal to any principle or to justify the legal status of nonhuman animals as property at all. Instead they treat the legal thinghood of nonhuman animals as a basic assumption, then decide their cases by relying mechanically upon prior judicial decisions and supporting jurisprudential writings.

However, these prior decisions and legal writings can be traced back to the ancient Greek, Roman, and Hebrew jurisprudence from which they emerged. These ancient laws were, in turn, spawned by primitive cosmologies, each of which trapped nonhuman animals in a universe that immutably placed the interests of humans above them. The law of this universe, real to the ancients but imaginary to us, demanded the legal thinghood of nonhuman animals. Modern scientific theories and experiments, most prominently Darwin's, have destroyed these cosmologies. Our current understanding of nature is no longer compatible with that status for nonhuman animals.

In the coming decades animal rights lawyers are sure to begin assaults upon the legal thinghood of nonhuman animals. They will bring to the attention of common law judges new scientific facts, as well as powerful legal theories that are only now being developed, to justify the expansion of fundamental legal rights to include nonhuman animals. These judges will then be free, indeed they will be compelled by the underlying principles of the common law, to reevaluate the legal thinghood of nonhuman animals in light of this evolving knowledge and the ideals of the common law. Along with broad knowledge and creativity, patience and persistence will be among the strongest virtues to be brought to the struggle, for Francione's book reveals the heights that must be climbed.

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