In our legal order -and in most of the countries-, animals have the category of things, with or without owners, and in this last case, they are susceptible of appropriation. As sentient beings, property of other individuals, their condition is comparable to that of the human slaves under the socio-economic system of slavery.
With the intention of avoiding cruelty derived from the tyranny to which the animals were subjected to in the industrial era, in the XIX century they began to pass the so-called “welfare laws», or anti-cruelty statutes that aimed at prohibiting the “unnecessary suffering” and promoting a “humanitarian treatment». Although it takes different forms, the legal welfarism, juridical version of the moral theory of animal welfare, maintains the idea that animals are ”inferior”, basing on this notion the justification of their exploitation. Animals as resources for human ends. The notion of “unnecessary suffering” varies according to the owners’ judgment and cultural ways and customs inserted in those laws, and not out of consideration in the interests of those involved. Safe from any prohibition there is the possibility of inflicting the “necessary” suffering to the animal, that is, the one derived from whatever institutionalized exploitation may be, in which animals are only goods with certain economic value. When conflicts of interests with humans take place, the equation among such unequal legal entities -people versus things – leads always to the frustration of animal interests, because the first protected right is that of the human’s property over the thing, the animal.
Based on in these rules, the current society is nurtured by animal pain.
Laws, representatives of this approach, deny the interests of life, of freedom and allow torture of animals when their owners oppose their own interests, mostly monetary, to those of the animals’. The cruelty that is condemned in the common citizen, becomes necessary and allowed when it is framed in a certain type of institutionalized exploitation. The legal construction is structurally similar to the one made to regulate slavery in the U.S. at the time. The slaves were their masters’ PROPERTY, although, under the penal laws, they responded as if they were people. They weren’t however totally unprotected: they were owed a particular treatment that didn’t include “excessive” blows or “unnecessary” penalties. The slave’s owner finally decided the best way to treat his slave.
Needless to say, all those who profit from maintaining this painful animal slavery, agree with animal welfare activists in the need of sanctioning laws that protect animals, as they don’t want to cause any damage that can alter the value of use of their property. Welfare laws are the foundations of the outrageous degree of suffering and contempt for life that humans inflict on those with whom they share sensitive life and, to different degrees, rational life.
The Rise of Animal Rights
The end of the 70’s and the start of the 80’s marked the birth of the animal rights movement. It is no longer about regulating the slavery, but about abolishing it. Animals are not considered means for ends. They hope for more than to suffer “what is necessary”. They hope to avoid suffering altogether. And certainly to stay alive and to live according to their own species’ interests. Priscilla Cohn –even she reject the position of rights– calls inherentist (derived from the adjective inherent), to people –among which she includes herself – that believe that animals possess an inherent value, that is to say, intrinsic, own. A value for itself and not according to what human beings can give it as merchandise. If animals feel, their legal categorization as things is absurd. The things don’t feel, they lack interests.
The Australian philosopher Peter Singer had an extraordinary impact on the limited aspirations of animal welfare. His book, Animal Liberation, exposed the total dimension of the two biggest centers of animal suffering for the first time: experimentation and breeding of animals for food. However, his approach is not framed in the theory of rights, because philosophically, Singer is utilitarian, ethics that, from the point of view of the classic distinction between teleological ethics or ethics related to aims, and deontological or related to duty, constitutes the teleological ethical doctrine which is most representative of the moral philosophy. Specifically, Singer enrolls in the utilitarianism of the act: the consequences of a certain act are pertinent and not the consequences of following a widespread rule. Surprisingly, although his position doesn’t allow him to speak of rights –neither in relation to the human beings–, he is considered by many as the father of the movement “for animal rights”.
The introducer of one of the theories based in moral rights is the American philosopher Tom Regan, author of The Case for Animal Rights and Empty Cages, among others. His view is deontological: the morality of an act doesn’t depend on its consequences, as in the utilitarianism assumption. It maintains that at least some animals – all mammals and birds absolutely – have desires, beliefs, memory, perceptions, self-conscience, intention and a sense of future. Its “welfare” doesn’t only depend on having their basic needs covered, but that they can live satisfying their own wishes and purposes, which will vary according to the species in question. Harm and “deprivations”, affects them. The deprivation might not even be linked to suffering: the bad-called “euthanasia” of healthy animals is the biggest deprivation, that of life itself, because all animals want to continue living. The central point of Regan’s theory is that animals are subjects of a life. As moral subjects, their first right is not to be harmed, independently of the benefit that this could bring to any human group. The rejection of instrumentalism – the notion that animals are means for someone else’s ends – leads to the attribution of a moral status to animals, which means there is the possibility that they are capable of posessing some basic rights.
The New Welfarism
Both the specialists of the modern movement of animal defense, and those who support the exploitation of non-human animals coincide that the defining characteristic of the animal rights movement is its rejection of instrumentalism. Regrettably, confusion has arisen within the movement itself.
Many defenders of animal rights took the position of rights as a search for immediate abolition of institutionalized exploitation and, considering it impossible, they decided to advocate for the theory of rights as a long-term objective, pursuing, meanwhile, welfare reforms. This position is named “new welfarism” by lawyer and professor Gary Francione, who has developed the topic with impressive clarity. The new welfarism, although it differs from the traditional welfarism in that it doesn’t consider humans to be “superior” to animals or that they have a right to exploit them, adduces the need to adopt welfare objectives and tactics in the short-term.
The new welfarists see no logical inconsistency in the fact of promoting measures that reinforce and support the theoretical principles of welfare for animals of today, and, on the other hand, defend the rights for the animals of tomorrow. Their foundation impregnates the animal rights movement with confusion and ambivalence. Because how is it possible – wonders Francione – to consider for example the violation of a human being as an ethically reprehensible act that has to be punished legally, and until that happens, to work for a “more humane” violation. The objectives of animal welfare, that promote avoiding “unnecessary suffering” and giving animals a “humane treatment”, allow them to be harmed institutionally, and adopting their “protection” measures, reinforces in society the idea that animals are at the service of humans. The current desperate situation of millions of animals shows that the animal rights movement, adopting welfare searches, has failed in elaborating the necessary strategies for a social change. Furthermore, in using the language of “rights” in a simply rhetorical way, they harm those who truly take this position, so much from the philosophical as from the pragmatic standpoint.
In the legal field it is possible to operate with projects that tend to obtain rights for animals, without supporting welfare rules that have been historically proven to be incapable of producing real changes. The objective is the achievement of the intermediate steps that will gradually allow a real change in the social condition of animals. To grant rights is not a utopian program. Educationally it entails the dismantling of the conditioning that speciesism concocted in hundreds of ways during many years. Legally it leads to precise objectives, through laws that progressively tend to grant real rights and to prevent that their lives depend on the will of humans that have them as property, a juridical situation which is incompatible with the notion that animals are sentient beings with morally significant interests.
Por Ana María Aboglio. Traducción: Viviana Löb.
 Regan, Tom, Empty Cages: Facing the Challenge of Animal Rights, Rowman Lttlefield Publishers, Inc, 2004.
 Francione, Gary L., Rain without Thunder: The Ideology of the Animal rights Movement. Temple University Press, Philadelphia, 1996.