Originally published in 2006, Volume 2
JOURNAL OF ANIMAL LAW, 49-66.
This is a book review of Speciesism by Joan Dunayer (Derwood, Maryland: Ryce Publishing, 2004). It is written in an academic style. For an easy to understand, non-academic summary of this review, read the Introduction and Conclusion below. For a detailed justification of the claims made in the Introduction and Conclusion, read the entire review.
Dunayer in 2004
Francione in 1995, 1996, 1999, 2000 and 2002
Objections and Replies
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Speciesism is a book that, for the most part, makes highly progressive, radical and laudable claims regarding animal rights theory and practice. It is unfortunate that its author, Joan Dunayer, not only fails to argue for many of these claims but also borrows them from the meticulously argued-for conclusions of another author; Gary L. Francione. After basing the majority of her work on Francione’s, it is astonishing that Dunayer proceeds to mischaracterize and dispute some of Francione’s conclusions, claiming that they contradict the animal rights theory that Francione developed in the first place, the very theory that Dunayer appropriates without providing adequate citation. These are the serious charges that I will now establish, drawing attention to merely one of the myriad examples of appropriation and misrepresentation found in Speciesism: Dunayer’s treatment of Francione’s suggested prohibition against battery cages. For an exhaustive treatment of the appropriation and misrepresentation found in Speciesism, see the unabridged version of this review. Exposing Dunayer’s appropriation and misrepresentation is of the utmost relevance to the increasingly prominent fields of non-human animal law, philosophy and political advocacy. In a world in which non-human animal advocates compare the continuing U.S. “war on terrorism” in Iraq with the consumption of animal products and state legislatures introduce bills that define “animal rights terrorist organizations” as two or more individuals who “support” any action that is intended to “deter” anyone from participating in any activity involving animals – all while animal rights law is being taught at prestigious universities – the need for clarity is paramount. Francione offers this clarity while Dunayer’s Speciesism obscures it.
Dunayer defines “speciesism” as “a failure, in attitude or practice, to accord any nonhuman being equal consideration and respect.” This definition is highly questionable. If one fails to treat a human animal with equal moral consideration of interests and respect because that human animal lacks traits that are prevalently associated with non-human animals (or possesses traits that are prevalently associated with human animals) one has committed a speciesist act. For example, if one advocates that certain human prisoners, but no non-human prisoners, be the unconsenting subjects of vivisection due to the mere fact that they are human (or because human animals as a general class oppress non-human animals), then one has failed to respect and accord equal moral consideration of interests to those humans due to a morally irrelevant quality; their species. Dunayer’s definition fails to capture this instance of speciesism.
Moreover, if a human animal is equally likely to harm a human or non-human animal as a result of an irrational fit of anger (not the individual’s species nor the likelihood of legal consequences), such harm falls within Dunayer’s definition but is clearly not an instance of speciesism. The perpetrator in this case harms human and non-human animals alike without any regard, in attitude or practice, for their species. In this instance, Dunayer’s definition is too broad.
Thus, perhaps a better definition of speciesism than Dunayer’s is “a failure, in attitude or practice, to accord any sentient being equal moral consideration of interests and respect due to that being’s species or having characteristics that are generally associated with a particular species.” Indeed, the fact that Dunayer limits her definition to non-human animals alone entails that it necessarily excludes the equal consideration and respect of one group (homo sapiens) purely on the basis of their species; a fact that arguably entails that Dunayer’s definition of “speciesism” is, itself, speciesist.
Furthermore, it is noteworthy that Dunayer grounds her questionable definition of speciesism by arguing that it is not immoral to kill or otherwise harm human animals for the reason that they possess abstract reason, language and so on—and this is so because it is immoral and illegal to kill or otherwise harm humans who lack those qualities. This argument begs the question; the alleged truth of its conclusion is contained within its undefended premises. That is, it is logically equivalent to the claim that killing or otherwise harming human animals (who may or may not possess abstract reason and so on) is immoral because it is immoral to kill or otherwise harm non-human animals (who do not possess abstract reason and so on). While Dunayer’s claim may be true, she does not support it with valid argument. Dunayer goes on to argue that killing or depriving any human or non-human animal of well-being (except in emergencies) is immoral because, as sentient beings, harming them causes them to suffer and killing them deprives them of future (sense) experiences. Again, without further argument, this is a non-sequitur. Thus, Dunayer’s argument for giving (sentient) human and non-human animals full and equal moral consideration – and her definition of speciesism that is grounded in this argument – are inadequate. In fact, this argument of Dunayer’s is a version of the classic “argument from marginal cases,” which has been refuted. Conversely, in Francione’s Introduction to Animal Rights, a unique, well argued moral theory is presented – intended for general audiences – that is grounded in principles that most everyone already accepts.
Dunayer in 2004
Dunayer begins her discussion of a prohibition against battery cages for hens who are used for their eggs by noting that People for the Ethical Treatment of Animals (PeTA) successfully lobbied McDonald’s (and later Burger King and Wendy’s) to increase the size of the battery cages that they confine hens within. Objecting to this, Dunayer states that it violates the moral rights of hens to confine them to the old standard of 48 square inches, the new standard of 67 square inches, or to any amount of confined space. Similarly, Dunayer rejects a Swiss law requiring that hens who are used for their eggs be exploited in cages that have at least 124 inches of floor space, which has the effect of replacing the cages with an alternative and profitable form of confinement. Furthermore, Dunayer asserts that the emancipation of non-human animals will be perpetually delayed unless advocates demand emancipation and cease focusing on regulating specific practices within the larger “needless” system of exploitation.
More specifically, Dunayer criticizes advocates who pursue prohibitions that fail to remove non-human animals from exploitative situations. For example, Dunayer objects to campaigns that seek to prohibit the forced molting of hens who are used for their eggs, as they are really regulations that specify that hens receive “adequate” food and water until they are killed. Dunayer states:
The forced-molting issue epitomizes the trade-offs that ‘reforms’ often entail. … To a rights advocate, the whole idea of attempting to calculate which causes more suffering—torturing and killing fewer chickens over a longer period of time [with forced molting] or torturing and killing more chickens over a shorter period [without forced molting]—is morally objectionable. Either way, chickens suffer and die. Either way, their moral rights are completely violated. Remember: chickens shouldn’t be imprisoned in the first place.
Returning to her rejection of a prohibition against battery cages, Dunayer argues that this prohibition fails to address the underlying cause of hens being subject to cruelty; namely, the exploitation itself. Instead, prohibiting cages merely focuses upon one cruel aspect of the exploitation. Dunayer strengthens this point by citing Francione’s comment that most human animals merely question the necessity of particular practices such as branding cows without questioning the eating of cows. To this, Dunayer adds that the importance of abstaining from eggs is obscured by a campaign to prohibit caging hens. Moreover, Dunayer argues that prohibitions that fail to stop exploitation imply that the exploitation can continue in a “fixed” or morally acceptable form. Again, Dunayer makes the point that those who consume animal products feel better about doing so and do not address the inherently immoral exploitative industries if the animal products are considered “humane.” Also, Dunayer notes that prohibiting the caging of hens who are used for their eggs implies that confining hens without cages is moral and wrongly suggests that supposed “free range” hens are genuinely free. Lastly, Dunayer argues “a ban that replaces one method of enslaving or killing with another method can make the exploitative industry more profitable” and provides an example of non-cage confinement systems increasing the profits of hen exploiters and making eggs more attractive to consumers. Dunayer notes that prohibiting the caging of hens modifies the method by which hens are imprisoned but fails to prohibit their being imprisoned, exploited and bred. As such, Dunayer concludes that prohibiting the caging of hens is speciesist, welfarist and is more aptly referred to as a standard that requires hens to receive “adequate” space. Importantly, she states, “Nonhuman advocates can’t predict such a ban’s economic consequences and shouldn’t attempt to, just as they shouldn’t attempt to calculate which of two abusive situations causes more suffering. They should oppose the egg industry’s very existence.”
Dunayer objects to Francione’s conclusion that prohibiting the caging of hens can be consistent with rights theory. First, she bases her objection solely on her comments discussed above. Then, Dunayer describes Francione as holding that a hen’s moral right to freedom of movement must be completely respected in order for a prohibition on cages to be justified. Dunayer objects that completely respecting a hen’s right to freedom of movement is impossible in a context in which the hen is being exploited for her eggs, as captivity and the limitation of freedom of movement are inherent to such exploitation. Dunayer further describes Francione as holding that, under a cage prohibition, hens would still be regarded and exploited as property, but must be treated as if they were not regarded as property if the prohibition is to be justified. Dunayer objects that since regarding hens as property is an inherent aspect of the egg industry, it would be impossible not to treat hens as such when they are being used for their eggs. Dunayer further asserts that Francione contradicts himself when he says that prohibitions within exploitative industries should not substitute or endorse alternative forms of exploitation in order to accord with rights theory, and also says that prohibiting cages is consistent with that theory. That is, Dunayer asserts that a prohibition of cages condones other methods of confining hens:
Any distinction between a ban that permits the continued exploitation of the animals in question (“You can’t cage hens”) and new requirements as to how that exploitation is carried out (“You must provide each hen with at least 124 square inches of floor space [which effectively would eliminate cages]”) is largely academic. Francione apparently recognizes this because he expresses a caveat: It is acceptable to “explicitly endorse” an “alternative form of confinement” if that confinement “fully recognizes the animals’ interests in freedom of movement.” Again, no exploitative confinement does that.
… Any proposal to modify the confinement of exploited hens endorses their property status.
…please ask yourself which makes more sense: to oppose a form of speciesist exploitation or to oppose, one after another, the countless abuses that it breeds?
… You can’t protect animals who remain in the hands of their oppressors.
Keeping hens in cages violates their rights, but so does keeping them in cageless warehouses or breeding them in the first place.
Conversely, two prohibitions that do satisfy Dunayer’s definition of an abolitionist prohibition are one that precludes the use of leg-hold traps in the fur industry and another that precludes the use of exotic “pets.” Lastly, Dunayer contends that part of a vegan lifestyle includes not “buy[ing] nonhumans (except to save them from abuse or death)”.
Francione in 1995, 1996, 2000 and 2002
Contrary to Dunayer’s depiction, Francione opposes welfare regulations that increase cage-size specifications for hens who are used for their eggs. Like Dunayer after him, Francione also argues that PeTA’s successfully pressuring McDonald’s to do so illustrates the failure of non-human animal welfarism. Francione wrote in 2000:
[A] proposal to increase the size of cages used to hold laying hens assumes the legitimacy of treating animals as property; it is aimed at regulating our ownership of animals. A proposal that we abolish the egg industry altogether as a violation of the basic right of animals not to be used as our resources is an animal rights position.
It is ironic that Dunayer’s objections regarding Francione’s proposed abolitionist prohibitions are peppered with unreferenced insights from Francione’s writing. For example, Dunayer’s comment – that certain prohibitions such as banning the withholding of water (in forced molting) can be understood as animal welfare standards that specify and regulate things such as the amount of water non-human animals receive – is Francione’s original insight. Furthermore, Dunayer’s discussion of “trade-offs,” replacing one method of exploitation with another and modifying methods of exploitation are also reflective of Francione’s work. For example, Dunayer’s condemnation of replacing cages with alternative confinement systems for hens who are used for their eggs is found in Francione’s work.
Regarding Dunayer’s objections to Francione’s view that – under highly qualified and limited circumstances – a campaign that seeks a prohibition against battery cages may be abolitionist, Dunayer both misinterprets Francione and makes logical fallacies in her rebuttal. While Dunayer asserts without rationale that prohibiting cages, even in narrowly defined circumstances, fails to address the exploitation that causes hens to be subject to cruelty, Francione offers an argument that concludes such a prohibition could serve to chip away at the property status that is the underlying cause of the hens’ exploitation, which subsequently makes them subject to cruelty. While Dunayer asserts that even a carefully crafted prohibition against cages only focuses upon one aspect of hens being exploited for their eggs, Francione notes that the aspect in question is liberty (of movement) and completely respecting the interest involved in that aspect of exploitation results in the overall property status of hens being partially removed. To understand why Francione draws these conclusions, it is necessary to examine his analysis.
Francione’s view that a prohibition against battery cages – with certain provisos – may be abolitionist is based on his view that the prohibition could satisfy certain criteria that stem from two central pillars of rights theory. These pillars are that the property status of non-human animals must be abolished and, when pursuing this goal, the interests of non-human animals cannot be violated in the present in order to prevent the interests of other animals from being violated in the future. From these central features of rights theory, Francione derives and argues for five criteria that must be met in order for a legal measure intended to benefit non-human animals to be productive and consistent with rights theory. The first of these criteria is that “An Incremental Change Must Constitute a Prohibition,” but it was Francione and not Dunayer who originally argued that this criterion on its own is not enough. Francione’s second abolitionist criterion is that “The Prohibited Activity Must Be Constitutive of the Exploitative Institution”. Francione argues that a proposal “to reduce the number of hens confined in a battery cage (floor space usually is a twelve-inch square) from four hens to three hens [thus increasing cage space for the remaining hens]”, and a proposal to increase the size of battery cages from 144 to 196 inches of floor space do not satisfy this criterion. By the application of Francione’s abolitionist criteria, all similar welfarist proposals such as increasing battery cage size from 48 to 67 square inches would likewise be rejected, contrary to Dunayer’s innuendos. Francione notes that replacing battery cages with coops that afford more movement does satisfy the second criterion, but he also argues that the first two criteria are insufficient to respect rights on their own.
The third criterion that "The Prohibition Must Recognize and Respect a Noninstitutional Animal Interest" is relevant to Dunayer’s view that the economic consequences of a prohibition against battery cages cannot and should not be predicted. In an example to the contrary, Francione illustrates the third criterion with a class of prohibitions that fail to satisfy it: “Temple Grandin’s animal-handling guidelines, which have been adopted by the American Meat Institute and endorsed by McDonald’s, are based on the notion that animal welfare is important because failure to observe certain standards will result in carcass damage and worker injuries … [that can] ‘mean the difference between profits and losses…’” Thus, Francione observes that such welfare guidelines help non-human animal exploiters maximize the economic value of their property and “have nothing to do with recognizing the interests of the animals—except instrumentally as means to human ends”, something Francione rejects. Francione states: “The test for [respecting a non-institutional interest] … necessarily admits of degrees[(56)]: if the interest imposes a significant cost or tax on the ownership of animal property under circumstances in which the cost is clearly not justified in light of the ‘benefit’ to the property owner, then the interest recognized is extra- or noninstitutional.” Dunayer’s claim that the economic consequences of a prohibition cannot be predicted is anticipated by Francione:
The test [for respecting a non-institutional interest] is simple to apply because, at least in theory[(58)], it requires merely that we identify what costs are imposed by the regulation on property ownership and whether those costs will significantly[(59)] exceed any benefit that animal property owners derive. In most cases, the property owners will be more than pleased to identify such regulations through their opposition to the proposals.
Francione anticipates the possible objection that, although an animal exploiter’s vocal opposition to a given proposal is an indicator that the opposition is attributable to the exploiter’s own economic self-interest, the truth of this motivation is not necessarily guaranteed. Hence, Francione advises non-human animal rights advocates to also make their own assessments of whether the costs to exploiters significantly exceeds any benefit to them—which would in turn indicate that the interest that the proposed change protects is a non-institutional interest. Anticipating a related objection, Francione states:
The property owner may, of course, try to pass such costs along to consumers. The problem is that the demand for just about any food is elastic and will change as the price changes. So, for example, if the costs of the regulation added $3 per pound to the price of hamburger, many people would shift to another food.
If a sustainable niche market could be found that was willing to pay more for “free-range” meat or eggs, the above analysis of Francione illustrates that the cost to exploiters would be trivial and therefore the proposed change would not protect a non-institutional interest. As such, Francione’s view requires that such a proposal be rejected. In other words, Francione absolutely rejects replacing battery cages with alternative systems of confinement even if the public is willing to pay more for “free-range” meat and eggs. Note that Francione’s economic test for whether a given proposal would protect a non-institutional interest of a non-human animal does not require one to predict economic consequences or the future price of meat and eggs. The reason why this is so is found in Francione’s fifth abolitionist criterion, discussed in subsequent paragraphs. (The fourth abolitionist criterion states that if the non-institutional interests of non-human animals are to be recognized, then these interests cannot be violated, or traded away, just because doing so would secure a benefit to humans. For example, a prohibition against religious animal sacrifices benefits those in power who do not regard this use of animals as “necessary” to produce a socially acceptable benefit that is recognized by those in power. Thus, even though it protects a non-institutional interest, this prohibition of animal sacrifices would not satisfy the fourth abolitionist criterion.)
Francione’s fifth and final criterion that any abolitionist change must satisfy—which, like the others, is grounded in the central features of rights theory—is “The Prohibition Shall Not Substitute an Alternative, and Supposedly More ‘Humane,’ Form of Exploitation.” According to Francione, replacing battery cages with larger cages, coops or any other confinement system – with the “possible” exception of the territory arrangement that would exist in the environment if humans never took any eggs – would reinforce and explicitly endorse the property status of hens who are used for their eggs. This is because their interest in freedom of movement would still be impinged upon for the purpose of taking eggs from them and this violates the central features of rights theory that inform Francione’s analysis.
Francione’s abolitionist criteria are incremental. As such, following them in any given campaign to impose a legal restriction on non-human animal exploiters will not result in the complete abolition of non-human animal exploitation. Following Francione’s abolitionist criteria will, however, result in the legal property status of non-human animals being chipped away such that many similar incremental steps will together eventually result in the total abolition of non-human animal exploitation. Importantly, when discussing abolitionist criteria three through five, Francione does state that the interests that the criteria protect are interests that the non-human animal would have if he or she were no longer property:
If, for example, laying hens were removed completely from the battery cage and placed in an environment where the treatment they received was consistent with that which these animals should receive were they no longer regarded as human property—that is, in a way that respected completely their interest in bodily movement—then that change would qualify [as abolitionist].
if egg batteries are abolished but hens, still regarded as property, are kept under circumstances that would be appropriate were their property status abolished entirely (i.e. they have freedom of movement and are otherwise kept as they would be were they no longer regarded as property), then, although the hens will continue to be exploited as property, the prohibition of battery cages recognizes an interest that the animal would have were the animal no longer regarded as property…
If animal interests are to be taken seriously, then, to the extent that the law regulates the use of animal property beyond what is necessary to exploit the animal property, that regulation must be held as eliminating the property right [of humans over non-human animals] to the extent necessary to protect the [non-human animal] interest. Otherwise, the victory for animals will be illusory: as soon as the rights of human property owners are triggered, the animal interest will be ignored. Accordingly, the interest of the animal must be seen explicitly as an interest that is to be protected as would a true “right” within the legal system. The interest would not be a “right” in the full sense, in that animals would not yet possess the basic right not to be regarded as property … but animals would have something approximating nonbasic rights, something that could be said to be building blocks of the basic right not to be property. These nonbasic “rights” must, however, be treated as though they were rights, in the sense that they must be regarded as protecting interests from any interests balancing [or trading away of interests].
Every time we recognize such a right, we move away from treating the being exclusively as a means to human ends; the problem is that the being’s most fundamental interests in not being eaten … have not yet been recognized. These incremental measures may be seen, however, as recognizing pieces of the basic right not to be regarded as property. So, although these interests represent nonbasic rights in one sense, the interests are more properly regarded as “parts” of the basic right of animals not to be treated exclusively as means to human ends. …[This is] a “protoright” because it functions like a right but runs to the benefit of a nonrightholder, properly speaking. …[A protoright] is something different from a right and something very different from what now exists under legal welfarism.
In the case of abolishing battery cages without replacing them with an alternative and supposedly more “humane” form of confinement, and where the other four abolitionist criteria are also abided by, Francione concludes that the proto-right to liberty (of movement) is being respected because the prohibition completely “eliminates the exploitation involved in the confinement system through a full recognition of the interest of the hens in their freedom of movement.”
It is of paramount importance that:
The animal advocate must not herself suggest an alternative [form of exploitation] and must not agree to any alternative offered by the exploiter. To do either would involve the rights advocate in sacrificing the basic right of animals not to be property in order to secure a less-than-basic protoright that … [supports] the notion that “bettering” the system of animal slavery can render it acceptable, which is to reinforce the notion that animal slavery itself is acceptable.
If animal exploiters … eliminate the battery cage in favor of some other form of hen enclosure that continues their status as property and does not fully respect their interest in, for example, bodily integrity [or movement], that does not necessarily undermine the incremental eradication of property status. … The battery hens will in all likelihood be placed in an alternative form of confinement. What the exploiter does in addition to [discontinuing the use of cages] cannot fairly be said to be a consequence of the rights advocate’s action, unless, of course, it is the rights advocate who actively urges this substitute exploitation. But in the absence of such support for alternative forms of exploitation … the rights advocate who obtains … a prohibition on various practices that are constitutive of factory farming has nevertheless achieved one incremental step in the general eradication of the property status of the animal through the recognition of a noninstitutional, nontradable interest that is based on the inherent value of the animal.
What is essential in seeking any incremental change is that rights advocates recognize that their efforts must be accompanied by a continuing and unrelenting political demand for the complete eradication of the property status of animals.
The implication of all of the above is, when a rights advocate simultaneously demands an end to the use of battery cages (without suggesting an alternative form of confinement) and an end to all exploitation of non-human animals (which includes any other confinement system) and the exploiter fails to meet this demand but instead responds by implementing an alternative form such as coops, Francione’s theory requires the rights advocate to continue to respond by relentlessly demanding an end to the use of the coops and any other system of confinement, coupled with the repeated demand to abolish the property status of non-human animals completely. Contrary to Dunayer’s suggestion, whether or not the exploiter in this case increased the price of eggs to cover the cost of the new coops, and whether or not a pricier “free-range” egg market could be found, the rights advocate neither has to predict this in advance nor predict any other economic consequences of the prohibition. Rather, the assessment of a prohibition’s cost to the exploiter can be both tentatively approximated beforehand and known with certainty after the exploiter has responded. Afterwards, if the exploiter responds by replacing the cages with an alternative form of confinement and this does not cause the economic value of the exploiter’s slaves to reduce due to the “free-range” market, then it is clear that the cost to exploiters would be trivial under Francione’s analysis discussed above. As such, the exploiter’s response of replacing the cages with the alternative form would fail to protect a non-institutional interest of the hens. Again, Francione’s theory requires that the activist never propose and always reject any alternative form of exploitation. Thus, under Francione’s theory, the rights activist must reject the exploiter’s new use of an alternative confinement system and continue to demand the complete abolition of both all forms of confinement and all non-human animal exploitation in general. Clearly, Dunayer’s objections involve a gross misinterpretation of Francione’s views.
Francione’s analysis (described above) of whether or not a legal measure that is intended to benefit non-human animals is productive and consistent with rights theory is practical, incremental and highly credible. In light of this analysis, Dunayer’s objections to it collapse like a house of cards. Dunayer’s charge that the importance of abstaining from eggs is obscured by a campaign to prohibit battery cages ignores Francione’s call for education. Francione acknowledges that the likelihood of a campaign that is consistent with rights theory (i.e. prohibiting battery cages without replacing them with coops or any other form of confinement) succeeding in this point of history is low. Nevertheless, Francione holds that such campaigns can be beneficial because they always include a call for the complete abolition of the property status of non-human animals and they serve to educate the public about this, thus provoking an ethical vegan social movement.
Furthermore, Dunayer’s assertion that a prohibition against battery cages – even with Francione’s strict qualifications – implies that the exploitation of hens can continue in a “fixed” or morally acceptable form because the hens are still being exploited for their eggs ignores the fact that their interest in liberty of movement is being completely respected, and this constitutes a proto-right or a piece of their property status being removed in an incremental fashion. That is, the prohibition entails that non-human animal exploiters are markedly and exceedingly less capable of using the hens in a way that property-law normally permits and encourages; benefiting the property owner and safeguarding her or his right to use the property in a way that maximizes efficiency of time, owner-autonomy and economic value. One indivisible interest of the hens is being completely respected (justly) at the expense of the owner losing her or his interests in profit and unfettered autonomy. The inherently incremental and progressive nature of Francione’s abolitionist method entails that the hens will not continue to be exploited for their eggs or anything else: one interest after another will be protected until hens and every other non-human animal are not used as property at all. In this abolitionist context, beginning the incremental process by completely respecting the interest in freedom of movement with a view to eventually respecting all interests does not, contrary to Dunayer’s suggestion, imply that confining hens without cages in a supposedly “free range” environment is morally acceptable. Contrary to Dunayer’s claim, Francione’s guidelines for progressive abolitionist change obviously do not permit replacing one method of enslaving or killing with another, modifying the conditions of confinement or imposing standards that require non-human animals to receive adequate space to exploit them in. Conversely, Francione’s guidelines ensure that non-human animals will eventually no longer be bred, imprisoned or exploited at all. They ensure (for example) that hens receive, as a first step among many, the space that is adequate to completely respect their interest in freedom of movement—that is, the territory arrangement that would exist in the environment if human animals never took any eggs or otherwise exploited them. Dunayer’s objection that doing so (in a context of exploitation in which eggs are still being taken and consumed by humans) would be impossible is unsound:
Before chickens were artificially bred by humans, their ancestors were jungle-fowls who nested in trees. If birds such as these were being exploited for their eggs in battery cages today, the result of Francione’s suggested prohibition would be that the birds would be removed from the cages and, after successful rehabilitation, returned to their jungle homes. The birds would be free to go anywhere in their environment they chose without any human intervention. There would be no fences or any other system of confinement. Humans would not touch or disturb the birds, save for stealing their eggs from their nests when the birds were away. This would still constitute wrongful exploitation, and Francione explicitly states this. Yet, this prohibition against battery cages would successfully respect the hens’ interest in liberty of movement, and protect an indivisible proto-right, in a context in which the hens are still being exploited as property. After this prohibition has been successfully achieved, the rights activist proceeds to secure additional interests for the birds until they are no longer exploited at all. This is the nature of Francione’s suggested prohibition.
Again, Francione wholly acknowledges that a campaign to introduce such a prohibition is unlikely to succeed at this point in history, and focuses instead on its important educational value. Contrary to Dunayer’s objection, however, Francione’s suggested prohibition against battery cages is not impossible in principle: it could be achieved now by an eccentric millionaire or in the future by an animal exploiter who is forced to follow the requirements of the above prohibition in a world in which a significantly larger proportion of the public has already accepted animal rights. Even in that future context, implementing Francione’s suggested prohibition might put animal exploiters who use battery cages out of business—a goal that Francione says must be explicitly stated by the rights activist. In any case, Dunayer’s claim that captivity and the limitation of freedom of movement are necessary components of the immoral practice of exploiting hens for their eggs is clearly unsound.
It might be objected that it is not the ancestors of modern chickens who are kept in battery cages. Since modern chickens have been artificially genetically selected for centuries, they are inherent slaves who have inborn traits that would frustrate their ability to survive and thrive in a non-exploitative context. Since the artificial genetic selection that they have been subject to cannot be undone, the rights of modern chickens can never be fully respected. Similarly, after human slavery was abolished in the United States, the fact that some slaves had been maimed and mutilated entailed that their rights could never be fully respected. This limitation, however, was solely due to unchangeable and unwanted circumstances, and not the prohibition against human slavery that abolitionists achieved. Thus, after the abolition of human slavery, the ideal of fully respecting the rights of former slaves as much as genuinely unchangeable circumstances allowed for was pursued. Regarding the future time after the complete abolition of all non-human animal exploitation has been achieved, Dunayer borrows Francione’s insight that any remaining non-human animals who could not be rehabilitated would be placed in sanctuaries that, in Dunayer’s words, “as much as possible … provide natural fulfilling environments.” As was the case in human slavery, any remaining non-human animals who were no longer property would have their rights respected as much as genuinely unavoidable circumstances allowed for. Since modern chickens who are exploited in battery cages have been artificially genetically selected for centuries, if they were returned to the jungle they would probably not survive. Hence, after complete abolition, they would be placed in sanctuaries that are acceptable to genuine abolitionists. Before complete abolition when non-human animals are still being exploited, but after a prohibition against battery cages that satisfies Francione’s stringent criteria, the hens would be placed in an environment that in all respects was the “same” as a sanctuary environment, with the exception that eggs would be stolen. Again, although the hens would still be wrongfully exploited as property in this way, their interest in liberty of movement would be fully respected, and this would constitute an incremental step towards respecting all of their interests.
Note that both genuine sanctuaries and “environments-that-mirror-sanctuaries-with-an-important-exception” have fences, sometimes to protect against predatory non-human animals such as free-living coyotes. In order to respect the interests of hens as much as possible, the fences that both genuine sanctuaries and “environments-that-mirror-sanctuaries-with-an-important-exception” would encompass areas that are appropriate to the normal ranging behaviors of their species. In this context, the fences do not constitute alternative confinement systems: just as genuinely unchangeable and unwanted circumstances prevented former human slaves from having their rights fully respected, genuinely unchangeable and unwanted circumstances (that do not arise from the speech or actions of rights activists) may dictate that hens who were formerly exploited in battery cages are – instead of being placed in a fenceless jungle amongst predators – placed in a fenced environment that is the same as a sanctuary environment, save for the previously mentioned exception. Again, the only reason why the exception of humans stealing and consuming eggs is present is because the prohibition in question is incremental and, as such, it does not result in the complete abolition of all non-human animal exploitation. Additional incremental prohibitions, however, will together result in complete abolition. In any case, Dunayer’s objection that Francione’s suggested abolitionist prohibition against battery cages would be “impossible” is unsound.
Thus, contrary to Dunayer’s false depiction, Francione does not contradict himself by suggesting that prohibitions should substitute or endorse alternative forms of exploitation. Contrary to Dunayer’s suggestion, Francione does not suggest creating new requirements regarding cage sizes or guidelines about how confined exploitation is to be carried out. Francione does not propose modified confinement. Dunayer asserts that it makes more sense to oppose one entire form of non-human animal exploitation, but Francione does just that: directly in 2000 and indirectly in 1996. Therefore, in light of Francione’s analysis of abolitionist incremental change, Dunayer’s objections to it disintegrate into misrepresentations and appropriations.
Importantly, it should also be noted that Francione’s incremental abolitionist criteria are tentative and Francione cautions:
[T]he rights advocate may reasonably conclude that all attempts to eradicate the institutionalized exploitation of animals through incremental legislation and regulation do not, at this point in the history of the human / nonhuman relationship, represent the most efficacious use of temporal and financial resources. … But this does not mean that the rights advocate is left without an incremental program of practical change. On the contrary, the rights advocate is left with a most important and time-consuming project: education of the public through traditional educational means—protest, demonstrations, economic boycotts, and the like—about the need for the abolition of institutionalized exploitation on a social and personal level. … Moreover, in light of the structural defects of animal welfare, any legislative or judicial campaign will need to be accompanied by a vigorous educational campaign.
I have offered several criteria that are intended to ensure that incremental measures erode the property paradigm, not support it. Although I hope that my criteria are useful, they are secondary to the need for an incremental eradication of the property status that causes the pain and suffering in the first instance.
In other words, the essence of Francione’s view on incremental abolitionist change is that it should be accomplished through education. If, however, one is bent on perusing legal and regulatory change then Francione argues that one must follow his criteria in order for the change to be abolitionist. Following the criteria is not an absolute, objective guarantee that a change will be abolitionist, but only constitutes a useful negative test or imprecise guide, and the rights activist must further contemplate and examine whether the primary goal of incrementally abolishing the property status of non-human animals is actually being served. It is in this spirit that Francione presents his example of abolishing battery cages without replacing them with an alternative form of confinement, a spirit that Dunayer ignores.
Regarding Dunayer’s own proposals for abolitionist prohibitions, she contradicts herself when she both states that such prohibitions do not leave non-human animals in situations of exploitation and offers the example of a ban against leg-hold traps within the fur industry. For, even with Dunayer’s suggested prohibition, non-human animals will continue to be exploited for their fur with the use of spring-loaded traps that hold them by the head or mid-section, closing-cage traps and battery cages in fur “farms.” That is, Dunayer has suggested a prohibition against leg-hold traps that substitutes one form of exploitation (leg-hold traps) for another (head/mid-section traps and other methods) and leaves non-human animals in the situation of being trapped and killed for their fur. Likewise for Dunayer’s suggested prohibition of exotic non-human animals who are used for companionship. A prohibition against the use of exotic or foreign non-human animals for human companionship fails to protect native or local non-human animals. Using one standard for foreign species and a different standard for local species is arbitrary and speciesist. Moreover, a non-human animal who is “exotic” to one part of the world is native to another. Thus, Dunayer’s suggested prohibition against the use of exotic “pets,” if applied at the Federal level, would prohibit chipmunks being used for companionship in Alaska but not Maine. Again, this is arbitrary and it leaves members of the same species of non-human animals in the same situation of exploitation.
Furthermore, Dunayer’s view that it is immoral to buy non-human animals unless doing so would save them from suffering and death is problematic. If one sees a malnourished or otherwise unwell puppy in a “pet” store, buying the puppy in order to rescue her or him will instigate a chain of events beginning with the store owner contacting the store’s wholesale supplier and ending with more puppies being bred and exploited at puppy mills. Following Dunayer’s suggestion would result in increasing economic demand for puppies who are sold in “pet” stores as objects and cause more to suffer the same fate. Admittedly, this issue is not clear-cut. Seeing a non-human animal who is suffering or near death and coldly turning one’s back because a rescue-by-purchase would cause others to be exploited, suffer and die in the future is also morally problematic. Dunayer’s treatment of this issue, however, is oblivious to both of its highly morally problematic features; she categorically holds that buying non-human animals to save them from abuse or death is part of a vegan lifestyle.
Lastly, in an article defending her book Speciesism, Dunayer states that she does not disapprove of killing to avoid starvation:
It isn’t speciesist to value some individuals (nonhuman or human) more than others. … If I’m starving in the Arctic, I’m entitled to kill and eat a polar bear, but I’m also morally entitled to kill and eat a human. In such rare circumstances a human’s right to life genuinely competes with someone else’s equal right to life. If I have no other food source, I – like a polar bear – must kill prey if I want to survive. There’s nothing speciesist about that.
It may not be speciesist, when starving without any other option, to murder and eat either a human or a non-human animal with equal disregard, but it certainly is fundamentally immoral. Francione examines the classic case of Regina v. Dudley and Stephens, in which four men were stranded in a lifeboat without food or reasonable hope of rescue. Two of the men killed and ate a third man against his protests. After being rescued, the killers were convicted of murder by the Queen’s Bench based upon the Court’s findings. The Court found that there is no “absolute and unqualified necessity to preserve one’s own life.” The Court asked, “Who is to be the judge of this sort of necessity? By what measure is the [equal] comparative value of lives to be measured?” Apparently, Dunayer is the judge and the measure is might makes right. While a polar bear has no capacity to make abstract, reasoned moral decisions and any moral sacrifice that might stem from such decisions, most human animals do have that capacity. To kill another in order to benefit oneself is the essence of what it means to violate a basic right. If I were in such an extreme emergency situation and decided to kill another sentient being, human or non-human, in order to save myself, I would be intensely aware at the time that what I was doing was fundamentally immoral, and that it would be entirely justified if I were convicted of murder afterwards. I would like to think that I would have the moral courage not to murder someone if faced with starvation. Apparently, Dunayer has no such scruples.
Whether or not Speciesism satisfies the criteria contained within the legal definition of “plagiarism” is not for me to say. The reader of Speciesism, Francione’s books and articles and this review must consider all three of these sources and judge for her or himself based upon the evidence. The following, however, gives one pause.
2004 Dunayer without reference to Francione:
U.S. law is even more speciesist than the U.S. public. Most U.S. residents believe that it’s wrong to kill animals for their pelts, but the pelt industry is legal. Most believe that it’s wrong to hunt animals for sport, but hunting is legal. Two-thirds believe that nonhumans have as much “right to live free of suffering” as humans, but vivisection, food-industry enslavement and slaughter, and other practices that cause severe, prolonged suffering are legal.
There is a profound disparity between what we [the public] say we believe about animals, and how we actually treat them. On one hand, we claim to treat animal interests seriously. Two-thirds of Americans polled by the Associated Press agree with the following statement: “An animal’s right to live free of suffering should be just as important as a person’s right to live free of suffering.” More than 50 percent of Americans believe that it is wrong to kill animals to make fur coats or hunt them for sport. … On the other hand, our actual treatment of animals stands in stark contrast to our proclamations about our regard for their moral status. We subject billions of animals annually to enormous amounts of pain, suffering and distress. …we kill more than 8 billion animals a year for food … Hunters kill approximately 200 million animals in the United States annually… we use millions of animals annually for biomedical experiments … And we kill millions of animals annually simply for [fur] fashion.
2004 Dunayer without reference to Francione:
“Welfarists” seek to change the way nonhumans are treated within some system of abuse. They work to modify, rather than end, the exploitation of particular nonhumans.
Both [welfarists] Spira and PETA … seek to effect change within the system. This inevitably requires the acceptance of reformist measures…
2004 Dunayer without reference to Francione:
…new speciesists endorse basic rights for some nonhuman animals, those ostensibly most similar to humans.
[The work of (speciesist) cognitive ethologists] is also dangerous in that it threatens to create new hierarchies in which we move some animals, such as great apes, into a “preferred” [personhood-rights] group based on their similarities to humans, and continue to treat other animals as our property and resources.
2004 Dunayer without reference to Francione:
We consider it immoral to treat any human, whatever their characteristics, as property.
We do not regard it as legitimate to treat any humans, irrespective of their particular characteristics, as the property of other humans.
All of this is not to say that two authors, working separately, cannot arrive at similar lines of thought and derive similar conclusions independently. Innocent coincidences do happen. Given that Dunayer cites all of the major and several of the minor works of Francione, however, it is clear that she is highly familiar with Francione’s ideas. In my view, the repeated and systematic way in which Dunayer appropriates and misrepresents these ideas, as exposed in this review, cannot be explained by coincidence alone. It is not for me to say what the explanation for this state of affairs is, but whatever it is, exposing the situation is important so that proper credit and representation can be given to a moral and legal theory, and a method of effecting political change, that has the power to radically transform human society into one that respects the basic rights and personhood of non-human animals: Francione’s Animals, Property and The Law, Rain Without Thunder and Introduction to Animal Rights are absolutely invaluable to the theorist and activist alike.
 Although Dunayer discusses the views of Steve F. Sapontzis, Tom Regan and others, her main source is Francione. It is the author’s contention that the animal rights theory of the latter constitutes one of extremely rare consistent scholarly positions on the subject. For these two reasons, this review will focus upon Dunayer’s treatment of Francione.
 As an animal rights philosopher and non-violent activist, I have written this review for two reasons. First, exposing the appropriation of Francione’s work is important because, both prior to and after Francione’s work, publications by other authors on the subject of “animal rights” fall far short of being consistent with what rights theory actually requires, as understood by moral philosophers past and present. So, regarding Francione’s development of genuine animal rights theory, credit should be given where it is due. More importantly, the second reason for this review is that exposing the misrepresentation of Francione’s views and supporting arguments has significant practical implications for the future plight of non-human animals. If the exploitation of non-human animals is to cease, the activists who bring about this result will have necessary been informed by a consistent, well-supported theoretical framework that was readily and effectively applied to practical situations. In short, the misrepresentation of Francione’s work does not do non-human animals any favors.
 “PETA Calls For ‘Cruelty-Free’ War,” http://www.alternet.org/story/15041 “TERRORISM AT THE TABLE,” http://www.peta.org/feat/turk-terr/
 http://www.capitol.state.tx.us/tlo/78r/billtext/HB00433I.HTM http://www.leg.wa.gov/pub/billinfo/2003-04/senate/6100-6124/6114.pdf http://www.scstatehouse.net/sess115_2003-2004/bills/4439.htm http://www.leg.state.or.us/03reg/measures/hb3500.dir/hb3518.intro.html
 Harvard University School of Law offers a course entitled “Animal Rights Law,” http://www.law.harvard.edu/academics/registrar/Bulletin/publication/courses.html In my view, this course does not teach genuine animal rights law. For a course in genuine animal rights law, see: Rutgers School of Law, Upper Class Elective Courses, “Animal Rights Seminar,” http://www.law.newark.rutgers.edu/students_course.html
 Joan Dunayer, Speciesism, (Derwood, Maryland: Ryce Publishing, 2004), p. 5. Emphasis added.
 Dunayer, Speciesism, op. cit., p. 4.
 Francione offers such an argument. See generally: Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog?, (Philadelphia: Temple University Press, 2000).
 David Sztybel, Empathy and Rationality in Ethics, (Toronto: University of Toronto Press, 2000), pp. 7-41, 64-76. http://sztybel.tripod.com/thesis_menu.html
 Although Francione does discuss the immorality of killing and harming human animals who lack abstract reason, language and so on and compares this with the immorality of killing non-human animals who also lack those qualities, he places this discussion within the context of a much broader argument that refers to the contradiction between the widespread acceptance of the humane treatment principle and the widespread violation of this principle in practice. As such, Francione does not employ the argument from marginal cases since his comparisons of “marginal” humans and non-human animals do not lead to any conclusions unless they are first placed in the context of Francione’s wider argument. Although Sztybel’s thesis (note 11 above) both refutes the argument from marginal cases and could be used to refute Francione’s theory, Sztybel’s thesis has less claim over the latter because Francione’s theory is founded upon axioms that are generally accepted and Francione does not purport to further justify those axioms with abstract meta-ethical theory. In short, Sztybel’s thesis is for academic moral philosophers whereas Francione’s theory is for the people and is thus founded in common sense. Admittedly, common sense regarding the widely held moral principles that Francione discusses may be open to philosophical scrutiny, but Francione readily acknowledges this. See: Francione, Introduction to Animal Rights, op. cit., pp. xxxiv-xxxvi.
 Ibid., pp. 59-60.
 Ibid., pp. 68-69.
 Ibid., p. 60.
 Ibid., pp. 65-66.
 i.e. the removal of food, water and light at the end of the period during a hen’s lifecycle when she lays the most eggs, thus forcing her body into one last egg-laying cycle before she is killed.
 Dunayer, Speciesism, op. cit., p. 66.
 Ibid., pp. 66-67. Emphasis added.
 Ibid., p. 67.
 Ibid., pp. 67-68.
 Ibid., p. 68.
 Ibid. Emphasis added
 Ibid., p. 69.
 Ibid., pp. 68-69.
 Ibid., pp. 69-71.
 Ibid., p. 69.
 Ibid., pp. 69-70.
 Ibid., p. 70.
 Ibid., p. 70-71.
 Ibid., p. 157.
 Ibid., p. 155.
 Francione, Introduction to Animal Rights, op. cit., p. xxxi; Friends of Animals, “An Interview with Professor Gary L. Francione on the State of the U.S. Animal Rights Movement,” Act’ionline, Summer 2002, quoting Gary L. Francione.
 Francione, Introduction to Animal Rights, op. cit., p. xxxi. Emphasis added.
 Francione discusses standards regarding the provision of water not constituting prohibitions both generally and with respect to vivisection whereas Dunayer discusses the same point within the context of forced moulting.
 Francione, Rain Without Thunder, op. cit., pp. 194-196, 200-201.
 Ibid., pp. 203-211.
 Ibid., pp. 196-198.
 Ibid., p. 190.
 Ibid., pp. 192-196.
 Ibid., pp. 196-198, 208-210.
 Ibid., p. 198.
 Ibid., pp. 199-203.
 Ibid., pp. 199-200.
 Ibid., pp. 200-201.
 Ibid., p. 201.
 “This criterion admits of degrees insofar as the ‘significance’ of the difference between the costs imposed on property ownership and the benefits reaped by property owners will vary. Many proposed reforms will add costs to property ownership, costs that represent recognition of a noninstitutional animal interest, but many of these costs may be trivial. For example, [in the previously rejected proposal to reduce the number of hens in a battery cage from four to three], the removal of one bird from the battery cage may be proposed for ‘moral’ and not economic reasons (i.e. the property owners, if completely rational [in pursuing self-interest] but left to their own devices, would not institute such a change), but it is still questionable whether the proposed change is ‘significant’ or is so trivial that its acceptance might constitute cost-effective appeasement offered by property owners to placate moral sentiment in favor of animals.” (Francione, Rain Without Thunder, op. cit., p. 202.) Since Francione previously rejected this proposal, he obviously maintains that the economic costs that the proposal imposes are trivial and therefore the proposal not satisfy the third criterion for an abolitionist measure.
 Francione, Rain Without Thunder, op. cit., p. 201.
 Supra note 56.
 Supra note 56.
 Francione, Rain Without Thunder, op. cit., p. 201. Emphasis added.
 Supra note 56.
 Francione, Rain Without Thunder, op. cit., p. 201.
 Ibid., p. 261 note 12.
 Supra note 56.
 Francione, Rain Without Thunder, op. cit., pp. 203-207.
 Ibid., p. 204.
 Ibid., pp. 204-207.
 Ibid., pp. 207-211.
 Ibid., pp. 202-207.
 Ibid., p. 210.
 Ibid., pp. 211, 215-216. Emphasis added.
 Ibid., pp. 215-216. Emphasis added.
 Ibid., pp. 192, 211
 Ibid., pp. 187, 162-163, 167, 169-173, 183.
 Dunayer makes a similar objection using different examples. Dunayer states that Francione does not categorically reject pursuing a prohibition on dehorning cows who are used for their meat and a prohibition on footpad injections in rats who are used in vivisection whereas Dunayer does reject these prohibitions because they leave the non-human animals in situations of exploitation and their exploiters will achieve their goals by using other, perhaps worse, methods. (Dunayer, Speciesism, op. cit., pp. 70-71.) Francione, however, makes clear that prohibitions on dehorning cows and injecting the footpads of rats arguably protect non-human animal “interests that go beyond those necessary to ensure that animals are fit for the type of exploitation at issue and its prohibition is not accompanied by a substitution of other forms of exploitation. … In both examples above, the prohibitions recognize interests that would be recognized were the animals not property at all.” (Francione, Rain Without Thunder, op. cit., pp. 214-215.) In other words, just as Francione argues that a prohibition on battery cages – that succeeds in fully protecting the interest of hens in freedom of movement at significant financial detriment to their human owners – results in a piece of the hens’ property status being eradicated in an incremental fashion, so too could prohibitions on dehorning and footpad injections completely protect non-institutional interests without substituting alternative forms of exploitation. As previously discussed, if a prohibition (e.g. on dehorning or footpad injections) failed to fully protect a non-institutional interest or, as Dunayer charges, substituted an alternative form of exploitation, then the prohibition would not satisfy Francione’s stringent abolitionist criteria. As such, Francione would reject these prohibitions.
 For example, a human slave whose hands were cut off could never have her or his right to bodily integrity and freedom of movement fully respected.
 Supra note 79.
 Dunayer, Speciesism, op. cit., p. 139. Emphasis added.; Francione, Introduction to Animal Rights, op. cit., p. 170, 153-154; Francione, “Wildlife and Animal Rights,” op. cit.
 i.e. instead of unfertilized eggs being consumed by the birds as is common practice in genuine sanctuaries, they are stolen and consumed by humans.
 Supra note 82.
 Supra note 79.
 Francione, Introduction to Animal Rights, op. cit., p. xxxi.
 See comments above regarding Francione’s suggested prohibition against battery cages having the probable effect of putting animal exploiters out of business.
 Francione, Rain Without Thunder, op. cit., pp. 190-192, 217-219.
 Ibid., p. 192.
 Ibid., p. 222. Emphasis changed.
 Ibid., pp. 177-192, 217-219.
 Chipmunks are native to Maine, so a prohibition against exotic “pets” would not apply to chipmunks who are used as “pets” in Maine. The reverse is true of chipmunks in Alaska and Hawaii.
 Dunayer, Speciesism, op. cit., pp. 154-155.
 Joan Dunayer, “Reply to a Self-Proclaimed Speciesist,” Vegan Voice, No 23 Sept.-Nov. 2005, p. 15.
 Francione, Animals, Property and the Law, op. cit., pp. 21-23.
 Dunayer, Speciesism, op. cit., p. 49.
 Francione, Introduction to Animal Rights, op. cit., pp. xix-xxi.
 Dunayer, Speciesism, op. cit., p. 58.
 Francione, Rain Without Thunder, op. cit., p. 65.
 Dunayer, Speciesism, op. cit., p. 98.
 Francione, Introduction to Animal Rights, op. cit., p. 119.
 Dunayer, Speciesism, op. cit., p. 136.
 Francione, Introduction to Animal Rights, op. cit., p. xxviii.
 Supra note 95.