Wrong with Rights?
By Pattrice Jones
Let them eat words. That seemed
to me to be the theme of the 2002 UN World Food Summit and parallel
NGO Forum for Food Sovereignty. At the
Summit, national delegations cut back-room deals to boost corporate
agribusiness, all the while applauding themselves for recognizing food
as a human right. At the Forum, activists spent so much time pontificating
about the right to food that plans to take direct action against hunger
fell by the wayside.
Sitting in a Roman auditorium as well-fed activists opined that what
starving people need most is more rights, I felt more than a little
mystified. It was
as if these otherwise rational people believed that, in the words of food policy
analyst Devinder Sharma, “the ‘right to food’ is a magical
stick that makes the Supermen of the political hierarchy deliver food to the
In fact, the “right to food” confers no such fantastic powers on
its holders. That right is recognized by the constitutions of the majority of
countries where people die daily of hunger and malnutrition. In 2001, India’s
Supreme Court affirmed the constitutional right to food. Years later, children
still starve as surplus food rots in government storehouses.
Meanwhile, here in the U.S., men no longer have the right to beat their wives
but battery remains the number one reason women seek emergency medical care.
Worldwide, every person now has the legal right not to be enslaved, but more
people are held in bondage than ever before.
Clearly, something’s wrong with “rights.”
The Social Roots of “Rights”
In theory, rights may be conceived as either natural or social.
The theory of natural rights holds that entitlements like liberty are inherent.
In this view, rights are real things that individuals have simply by virtue of
existing. In contrast, rights may be seen as ideas and practices that arise from
the agreements that people make with one another. In this view, rights are social
constructs that come into being only in the context of relationships.
In practice, rights are always social. Any natural rights we might have are meaningless
unless they are recognized and respected by others. Whether inherent or the result
of agreements, rights are realized only when people consent or are compelled
to honor them.
Power is the unspoken variable lurking in and around rights. Rights both express
and regulate power relations among people. Moreover, rights are enforced by physical
“Property” comes into being when land or animals are forcibly enclosed
or when people or animals are alienated from the products of their labor. These
are inherently violent processes, since they involve actual or threatened use
of force and cause injury. From electrified fences around lakes to armed guards
at grocery stores, the violence implicit in property is hidden in plain view
Because rights are relational and because they are all about power, all of the
problems of our inequitable social systems reside within them. Discrepancies
of power due to class, sex, and race are built into our structures of rights
and perhaps even into the very concept of rights.
That insight helps us see how this troubled concept might be even more problematic
when applied to animals. Denial of rights is experienced as denial of humanity.
That makes sense, since rights are agreements among people. Humanity is, in a
sense, built into rights. People often assert their own rights—including
the “right” to own land or animals—specifically in order to
claim their place in the human community.
Animals have their own projects and have not expressed the wish to join the human
community. Do we, perhaps, do them a disservice when, instead of liberating them
from our influence, we seek to incorporate them into a system of rights defined
and enforced by humans?
Thunder Without Rain?
In 1857, Frederick Douglass said that “power concedes nothing without a
demand” and that “those who profess to favor freedom and yet deprecate
agitation are men who want crops without plowing up the ground. They want rain
without thunder and lightning.” In the agrarian context in which those
words were spoken, people understood that plowing is hard work that is often
impeded by resistant roots and the backlash of flying rocks. They knew that thunder
is a bombastic by-product of the necessary and nourishing rain.
Recently, thanks to Gary Francione’s book of the same name, the phrase “rain
without thunder” has come to be used as a simplistic denunciation of those
who work for material improvements in animals’ lives rather than for abstract
animal rights. Leaving aside the impropriety of this odd misappropriation of
Douglass’ powerful metaphor, we have to ask whether the rights-based approach
to animal liberation might not be vulnerable to the complementary charge.
Is agitation for animal “rights” thunder without rain? Rights-oriented
animal advocates aim to remove animals from the category of property and vest
them with the rights enjoyed by human beings. But animals, like people, can’t
eat words. If rights can’t keep children out of bondage in brothels or
protect women from rape, how will they keep hens out of factories or protect
cows from forced impregnation? If ever obtained, animal rights might turn out
to be heat lightning, brightening the skies without breaking the heat or ending
It seems that the first step toward animal liberation must be to quit asserting
authority over animals. Conceding the authority of the legal system subjects
animals to authority they did not choose. Rule by law is valid only with the
consent of the governed. The animals do not consent.
I’ve always sought liberation rather than rights. Ever since I was a queer
teen rebel in the 1970s, I’ve balked at the idea of petitioning the power
structure to recognize me. I’ve always experienced the legal system as
part of the patriarchy. I do not cede its authority over me.
Does that mean that people who work for “rights” are my enemies?
Not at all!
Just as some scholars worry that working for animal welfare may inadvertently
bolster an ideological system that needs to be torn down, I worry that pleading
for animals to have “rights” within a conceptual framework defined
by human power relations may inadvertently strengthen the stranglehold that the
ethnocentric and patriarchal legal system has wrapped around the world. But this
is just a suspicion so, while I work for “liberation” rather than “rights,” I
see people who are working for “rights” as my allies in animal advocacy.
People working for animal welfare are my allies too. While our ultimate aim must
be the liberation of animals as a class, we also must do what we can to reduce
the suffering of actual animals in the interim. Animals are not abstract entities.
They are real creatures who experience real pain and who must live with the results
of our choices concerning what we will and won’t do for them.
People acting on their own behalf are entitled to let foolishness or vanity or
knee-jerk preferences for this or that tactic impede their own progress toward
freedom, but we have no such right in relation to the animals. Unless or until
we can prove that working for welfare or rights impedes progress toward liberation,
we have to accept the respective benefits of both approaches.
Nobody knows for sure what will be the best route to liberation. If we did know,
if the available data led to inescapable conclusions, then all of us who embrace
animal liberation as a goal would have no difficulty in agreeing on a course
of action. But the data are not clear. No one has done this before.
How, then, can we decide whether and how to work for animal “rights?”
Ask the Animals
During the Elian Gonzales controversy a few years ago, many people were shocked
that the boy’s father chose to return himself and his son to Cuba. Here
where the right to free speech is highly esteemed but rights to housing and medicine
are not recognized, people found it difficult to understand why someone might
choose guaranteed shelter, health care and hurricane relief over the right to
insult the head of state. Since September of 2001, many of the people who proclaimed
themselves mystified by the choices of Elian’s father have proved themselves
to be willing to trade civil liberty for a feeling of security.
People differ in the degree to which they recognize or value various alleged
rights. How much more wide would be the spectrum of opinion among animals if
we asked them about rights?
What do animals want? Food, sex, freedom, comfort, family, shelter, fun...and
we don’t know what else. We cannot assume that nonhuman animals want what
we want. We have to ask the animals what they want. We can do that by observing
their own efforts to liberate themselves and by using informed empathy. We must
learn all we can about them and then ask not “what would I want in that
situation?” but “what would I want if I were that kind of animal
in that situation?”
Birds and wide-ranging mammals need lots of space and the physical freedom to
explore it. Pond-dwelling fish and amphibians might not even notice if they were
fenced in but have a particularly acute need for water purity and ecosystem integrity.
What do animals want from us? Setting aside for a moment the species with whom
we co-evolved—certain mites like us very much—most animals most likely
want us to give them back their habitats and leave them alone.
Liberation might look different for some so-called “domesticated” animals.
At the Eastern Shore Sanctuary, chickens who demonstrate the ability to do so
safely are free to sleep in the trees and forage outside of the fenced yards.
Typically, the birds who have been least scarred by past abuse prefer feral freedom
while the birds who have been most hurt by factory farming, cockfighting, and
in-breeding choose the relative safety of the coops and fenced foraging yards.
Observing the process by which some birds at the sanctuary have chosen to be
self-reliant and free, it occurs to me that chickens who have the strength to
do so probably would prefer, like their wild jungle fowl relatives who still
live in forests in Asia, to live entirely apart from people. Over time, they
would recover the genetic integrity that our denial of their reproductive freedom
had stolen from their species.
Dogs are a different story. Humans and dogs co-evolved. Canis lupus and Homo
erectus were in close relationship with one another, and that has helped determine
the details of our evolution. Thus the association of people and dogs is written
into our bodies. That being the case, dogs might prefer not to be left to their
own devices but, rather, to return to the harmonious inter-species relationship
that prevailed before people subjected their former friends to captivity, forced
labor, and reproductive control.
Wild birds, chickens, pond-dwellers, dogs—all have different needs and
potentially different preferences about “rights.” Which rights should
they be granted and how shall those rights be enforced? How can we make that
decision without further subjecting the animals to illegitimate authority?
I don’t pretend to have the answer to these questions. I doubt there is
an answer. But one solution might be to start thinking about rights as tactics
rather than goals.
Activist tactics vary in their efficacy, depending on a host of contextual factors.
The trick is finding the right tactic—or, more often, the right combination
of tactics—for the specific situation.
Rights do seem to have their intended effect sometimes. It’s certainly
possible that the pursuit of rights in general and the removal of animals from
the legal category of property in particular might be among the means of achieving
But since unfettered access to unpolluted ecosystems seems to be the primary
need of most animals and since the idea of land, lakes, and airspace as property
interferes with that aim, how can we work within a legal system that was created
to protect property rights? We might establish more wildlife preserves in order
to achieve de facto respect for a right to habitat for at least some animals.
But this is the same kind of compromise that rights-centered theorists deplore
when made by the animal welfare activists who work from a relational ethos of
care. How can we get past such impasses?
Animals are outlaws. They stand outside of the law’s protection and they
rightly disregard laws enacted by other creatures without their consent. Animals
need protection from human abuses of their bodies and their homes but laws may
not be able to provide the protection they need.
When Indian elephants and South African baboons protest human encroachments,
they do so not by pleading for us to recognize their rights but by trampling
plantations, trashing apartments, and tearing apart the fences that people have
erected to protect their “property.” That’s the kind of plowing
Frederick Douglass was talking about.
Pattrice Jones coordinates the Eastern Shore Sanctuary and Education Center.
To learn more, see www.bravebirds.org.