Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor (pp. 156-165)
“Some time ago, I taught a property class in which we studied the old case of Pierson v. Post:
Post, being in possession of certain dogs and hounds under his command, did, ‘upon a certain wild and uninhabited, unpossessed and waste land, called the beach, find and start one of those noxious beasts called a fox,’ and whilst there hunting, chasing and pursuing the same with his dogs and hounds, and when in view thereof, Pierson, well knowing the fox was so hunted and pursued, did, in the sight of Post, to prevent his catching the same, kill and carry it off.
[…] It was about this time that I began studying something that may have been the contract of sale of my great-great grandmother as well as a census accounting that does list her, along with other, inanimate evidence of wealth, as the ‘personal property’ of Austin Miller.
In reviewing those powerfully impersonal documents, I realized that both she and the fox shared a common lot, were either owned or unowned, never the owner. And whether owned or unowned, rights over them never filtered down to them; right to their persons were never vested in them. When owned, issues of physical, mental, and emotional abuse or cruelty were assigned by the law to the private tolerance, whimsy, or insanity of an external master. And when unowned – free, freed, or escaped – again their situation was uncontrollably precarious, for as objects to be owned, they and the game of their conquest were seen only as potential enhancements to some other self. […]
From the object-property’s point of view (that of my great-great grandmother and the nameless fox), the rhetoric of certainty (of rights, formal rules, and fixed entitlements) has been enforced at best as if it were the rhetoric of context (of fluidity, informal rules, and unpredictability). Yet the fullness of context, the trust that enhances the use of more fluid systems, is lost in the lawless influence of cultural insensitivity and taboo. So while it appears to jurisdictionally recognized and invested parties that rights designate outcomes with a clarity akin to wisdom, for the object-property the effect is one of existing in a morass of unbounded irresponsibility.
[…] This underscores my sense of the importance of rights: rights are to law what conscious commitments are to the psyche. This country’s worst historical moments have not been attributable to rights assertion but to a failure of rights commitment. From this perspective, the problem with rights discourse is not that the discourse is itself constricting but that it exists in a constricted referential universe. The body of private laws epitomized by contract, including slave contract, is problematic because it denies the object of contract any rights at all.
[…] Such expanded reference – first made controversial by Christopher Stone’s famous article ‘Should Trees Have Standing?’ – is premised on the degree to which rights do empower and make visible:
We are inclined to suppose the rightlessness of rightless ‘things’ to be a decree of Nature, not a legal convention acting in support of some status quo. It is thus that we defer considering the choices involved in all their moral, social and economic dimensions…The fact is that each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable. This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’ – those who are holding rights at the time.
One consequence of this broader reconfiguration of rights is to give voice to those people or things that, by virtue of their object relation to a contract, historically have had no voice. Allowing this sort of empowering opens up the egoisme à deux of traditional contract and increases the limited bipolarity of relationship that characterizes so much of western civilization. Listening to and looking for interests beyond the narrowest boundaries of linear, dualistically reciprocal encounters is characteristic of gift relationships, networks of encompassing expectation and support.
[…] Such an expanded frame of rights reference underlies a philosophy of more generously extending rights to all one’s fellow creatures, whether human or beast.
[…] The task for Critical Legal Studies, then, is not to discard rights but to see through or past them so that they reflect a larger definition of privacy and property: so that privacy is turned from exclusion based on self-regard into regard for another’s fragile, mysterious autonomy; and so that property regains its ancient connotation of being a reflection of the universal self. The task is to expand private property rights into a conception of civil rights, into the right to expect civility from others. In discarding rights altogether, one discards a symbol too deeply enmeshed in the psyche of the oppressed to lose without trauma and much resistance. Instead, society must give them away. Unlock them from reification by giving them to slaves. Give them to trees. Give them to cows. Give them to history. Give them to rivers and rocks. Give to all of society’s objects and untouchables the rights of privacy, integrity, and self-assertion; give them distance and respect. Flood them with the animating spirit that rights mythology fires in this country’s most oppressed psyches, and wash away the shrouds of inanimate-object status, so that we may say not that we own gold but that a luminous golden spirit owns us.”
Tom Regan, “The Case for Animal Rights,” in In Defense of Animals (pp. 13-29)
“What to do? Where to begin anew? The place to begin, I think, is with the utilitarian’s view of the value of the individual — or, rather, lack of value. In its place, suppose we consider that you and I, for example, do have value as individuals — what we’ll call inherent value. To say we have such value is to say that we are something more than, something different from, mere receptacles. Moreover, to ensure that we do not pave the way for such injustices as slavery or sexual discrimination, we must believe that all who have inherent value have it equally, regardless of their sex, race, religion, birthplace and so on. Similarly to be discarded as irrelevant are one’s talents or skills, intelligence and wealth, personality or pathology, whether one is loved and admired or despised and loathed. The genius and the retarded child, the prince and the pauper, the brain surgeon and the fruit vendor, Mother Teresa and the most unscrupulous used-car salesman — all have inherent value, all possess it equally, and all have an equal right to be treated with respect, to be treated in ways that do not reduce them to the status of things, as if they existed as resources for others. My value as an individual is independent of my usefulness to you. Yours is not dependent on your usefulness to me. For either of us to treat the other in ways that fail to show respect for the other’s independent value is to act immorally, to violate the individual’s rights.
Some of the rational virtues of this view – what I call the rights view – should be evident. Unlike (crude) contractarianism, for example, the rights view in principle denies the moral tolerability of any and all forms of racial, sexual or social discrimination; and unlike utilitarianism, this view in principle denies that we can justify good results by using evil means that violate an individual’s rights -denies, for example, that it could be moral to kill my Aunt Bea to harvest beneficial consequences for others. That would be to sanction the disrespectful treatment of the individual in the name of the social good, something the rights view will not — categorically will not —ever allow.
The rights view, I believe, is rationally the most satisfactory moral theory. It surpasses all other theories in the degree to which it illuminates and explains the foundation of our duties to one another – the domain of human morality. On this score it has the best reasons, the best arguments, on its side. Of course, if it were possible to show that only human beings are included within its scope, then a person like myself, who believes in animal rights, would be obliged to look elsewhere.
But attempts to limit its scope to humans only can be shown to be rationally defective. Animals, it is true, lack many of the abilities humans possess. They can’t read, do higher mathematics, build a bookcase or make baba ghanoush. Neither can many human beings, however, and yet we don’t (and shouldn’t) say that they (these humans) therefore have less inherent value, less of a right to be treated with respect, than do others. It is the similarities between those human beings who most clearly, most non-controversially have such value (the people reading this, for example), not our differences, that matter most. And the really crucial, the basic similarity is simply this: we are each of us the experiencing subject of a life, a conscious creature having an individual welfare that has importance to us whatever our usefulness to others. We want and prefer things, believe and feel things, recall and expect things. And all these dimensions of our life, including our pleasure and pain, our enjoyment and suffering, our satisfaction and frustration, our continued existence or our untimely death – all make a difference to the quality of our life as lived, as experienced, by us as individuals. As the same is true of those animals that concern us (the ones that are eaten and trapped, for example), they too must be viewed as the experiencing subjects of a life, with inherent value of their own.
Some there are who resist the idea that animals have inherent value. ‘Only humans have such value,’ they profess. How might this narrow view be defended? Shall we say that only humans have the requisite intelligence, or autonomy, or reason? But there are many, many humans who fail to meet these standards and yet are reasonably viewed as having value above and beyond their usefulness to others. Shall we claim that only humans belong to the right species, the species Homo sapiens? But this is blatant speciesism. Will it be said, then, that all – and only – humans have immortal souls? Then our opponents have their work cut out for them. I am myself not ill-disposed to the proposition that there are immortal souls. Personally, I profoundly hope I have one. But I would not want to rest my position on a controversial ethical issue on the even more controversial question about who or what has an immortal soul. That is to dig one’s hole deeper, not to climb out. Rationally, it is better to resolve moral issues without making more controversial assumptions than are needed. The question of who has inherent value is such a question, one that is resolved more rationally without the introduction of the idea of immortal souls than by its use.
Well, perhaps some will say that animals have some inherent value, only less than we have. Once again, however, attempts to defend this view can be shown to lack rational justification. What could be the basis of our having more inherent value than animals? Their lack of reason, or autonomy, or intellect? Only if we are willing to make the same judgment in the case of humans who are similarly deficient. But it is not true that such humans — the retarded child, for example, or the mentally deranged – have less inherent value than you or I. Neither, then, can we rationally sustain the view that animals like them in being the experiencing subjects of a life have less inherent value. All who have inherent value have it equally, whether they be human animals or not.
Inherent value, then, belongs equally to those who are the experiencing subjects of a life. Whether it belongs to others – to rocks and rivers, trees and glaciers, for example — we do not know and may never know. But neither do we need to know, if we are to make the case for animal rights. We do not need to know, for example, how many people are eligible to vote in the next presidential election before we can know whether I am. Similarly, we do not need to know how many individuals have inherent value before we can know that some do. When it comes to the case for animal rights, then, what we need to know is whether the animals that, in our culture, are routinely eaten, hunted and used in our laboratories, for example, are like us in being subjects of a life. And we do know this. We do know that many – literally, billions and billions – of these animals are the subjects of a life in the sense explained and so have inherent value if we do. And since, in order to arrive at the best theory of our duties to one another, we must recognize our equal inherent value as individuals, reason – not sentiment, not emotion – reason compels us to recognize the equal inherent value of these animals and, with this, their equal right to be treated with respect.
That, very roughly, is the shape and feel of the case for animal rights. Most of the details of the supporting argument are missing. They are to be found in the book to which I alluded earlier. Here, the details go begging, and I must, in closing, limit myself to four final points.
The first is how the theory that underlies the case for animal rights shows that the animal rights movement is a part of, not antagonistic to, the human rights movement. The theory that rationally grounds the rights of animals also grounds the rights of humans. Thus those involved in the animal rights movement are partners in the struggle to secure respect for human rights – the rights of women, for example, or minorities, or workers. The animal rights movement is cut from the same moral cloth as these.”